Query v. Gate City Life Insurance, 218 N.C. 386 (1940)

Oct. 30, 1940 · Supreme Court of North Carolina
218 N.C. 386


(Filed 30 October, 1940.)

1. Appeal and Error § 37b—

A motion at trial term to set aside a verdict as contrary to the weight of the evidence is addressed to the discretion of the trial court, and its decision thereon is not subject to review on appeal.

3. Appeal and Error § 40a—

An exception to the signing of the judgment presents only the question of whether error appears on the face of the record, and the exception must fail when the judgment is supported by the record.

Appeal by defendant from Ervin, Special Judge, at February Term, 1940, of Cabarrus.

Civil action to recover on contract of insurance.

It is admitted that on 28 February, 1938, the defendant duly issued a $500 policy of insurance on the life of Mary Dorton, payable to the plaintiff as beneficiary, and that it was in force at the date of the death of the insured, 19 February, 1939.

The defendant denied liability under the following provision in the policy: “No benefits will be paid for death resulting within two years from . . . intemperance.”

The medical certificate of death gives “Alcoholic intoxication” as the cause of death, while the coroner’s certificate recites “Acute alcoholism” as one of the “Contributory causes of importance not related to principal cause.” C. S., 7111; Rees v. Ins. Co., 216 N. O., 428, 5 S. E. (2d), 154.

The jury answered the issue in favor of the plaintiff, and from judgment thereon, the defendant appeals, assigning errors.

R. Furman James for plaintiff, appellee.

Hartsell & Hart-sell for defendant, appellant.

*387Stacy, C. J.

It is asserted tbat tbe court erred in two respects, (1) in refusing to set aside tbe verdict as against tbe weight of tbe evidence, and (2) in signing tbe judgment.

First. Speaking to tbe action of tbe trial court in refusing to enter judgment on a verdict wbicb tbe court bad theretofore set aside, in its discretion, as contrary to tbe weight of tbe evidence, it was said in Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686: “Rulings of tbe Superior Court on matters addressed to tbe court’s discretion, e.g., . . . determination of motion at trial term to set aside verdict as contrary to tbe weight of tbe evidence, . . . wbicb involve no question of law or legal inference, are not subject to review on appeal.” In addition to tbe authorities there cited and as further illustrative of tbe rule, see Evans v. Ins. Co., 213 N. C., 539, 196 S. E., 814; Bank v. Shuford, 204 N. C., 796, 169 S. E., 226; Hardison v. Jones, 196 N. C., 712, 146 S. E., 804. Cf. Likas v. Lackey, 186 N. C., 398, 119 S. E., 763.

Second. Tbe imputed error “in signing tbe judgment” presents only tbe question whether error appears on tbe face of tbe record. In re Escoffery, 216 N. C., 19, 3 S. E. (2d), 425; Moreland v. Wamboldt, 208 N. C., 35, 179 S. E., 9; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579; Smith v. Mineral Co., 217 N. C., 346. Obviously tbe judgment is supported by tbe record. Hence, tbe exception must fail. Ingram v. Mortgage Co., 208 N. C., 329, 180 S. E., 594; Warren v. Bottling Co., 207 N. C., 313, 176 S. E., 571; Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306.

No error.