Ferrell v. Metropolitan Life Insurance, 208 N.C. 420 (1935)

Sept. 18, 1935 · Supreme Court of North Carolina

208 N.C. 420

WILMA E. FERRELL v. METROPOLITAN LIFE INSURANCE COMPANY.

(Filed 18 September, 1935.)

1. Trial I> a—

A motion as of nonsuit must be made at tbe close of plaintiff’s evidence, and, if overruled, at tbe conclusion of all tbe evidence, or question of tbe sufficiency of tbe evidence will be deemed waived. C. S., 567.

3. Same—

A judgment as of nonsuit entered by tbe trial court of its own motion will not be beld for error when tbe evidence would justify a directed vei*-dict, a nonsuit and a directed verdict having tbe same legal effect.

3. Appeal and Error La: 1 d — Decision on former appeal constitutes the law of the case upon subsequent hearing and appeal.

Where it is determined on appeal that tbe evidence warranted tbe submission of tbe case to tbe jury, and tbe case is remanded, upon a subsequent bearing upon substantially tbe same evidence, tbe refusal of tbe trial court to submit tbe case to tbe jury is error, tbe former decision constituting tbe law of tbe case both in subsequent proceedings in the trial court and on a subsequent appeal.

Appeal by plaintiff from Granmer, J., at March Term, 1935, of Currituck.

Reversed.

This is an action by plaintiff to recover of defendant tbe sum of $2,000.00 on a life insurance policy.

O. B. Morris and John H. Hall for plaintiff.

Worth & Horner for defendant.

OlaeKsoN, J.

At tbe close of plaintiff’s evidence, tbe defendant did not make a motion for judgment as in case of nonsuit. C. S., 567. Tbe record discloses “at tbe conclusion of all tbe testimony tbe Court, of its own volition, ordered that judgment of nonsuit be entered.”

In Nowell v. Basnight, 185 N. C., 142 (147), “The following may be considered as fairly interpretative of C. S., 567 . . . Time of making motion — It must be made first at the close of plaintiff’s evidence and before defendant introduces any evidence.” By the failure of defendant to follow strictly 0. S., 567, the question of the insufficiency of evidence is waived. Harrison v. Ins. Co., 207 N. C., 487 (490).

A nonsuit and dismissal under the Hinsdale Act has the same legal effect as a directed verdict, and where, in an action on a note, there is no evidence in contradiction of defendant’s evidence constituting a complete defense to the action, a judgment as of nonsuit will not be held for error, since the evidence would support a directed verdict in defendant’s favor, the court not weighing the evidence, but taking it to be true. Hood, Comr. of Banks, v. Bayless, 207 N. C., 82.

On the former appeal, 207 N. C., 51 (51-2), this Court said: “The plaintiff made out a prima facie case. The defendant offered evidence tending to show that the policy in suit lapsed for nonpayment of semiannual premium due 26 October, 1932. The credibility of defendant’s defense was challenged by plaintiff’s denial of assured’s signature to the written acknowledgement. This made it a case for the jury.”

In Power Co. v. Yount and Robinette v. Yount, ante, 182 (184), it is written: “ ‘A decision by the Supreme Oourt on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.’ Newbern v. Telegraph Co., 196 N. C., 14; Nobles v. Davenport, 185 N. C., 162.”

We do not set forth the evidence as the case is to be heard again. As stated in the former opinion, “This made it a case for the jury.”

The judgment of the court below is

Eeversed.