Warren v. Pilot Life Insurance, 219 N.C. 368 (1941)

March 26, 1941 · Supreme Court of North Carolina

219 N.C. 368

RENA WARREN v. PILOT LIFE INSURANCE COMPANY.

(Filed 26 March, 1941.)

Appeal and Error § 49a—

When the evidence upon the subsequent hearing is substantially the same as that considered upon the former appeal, a peremptory instruction given in accord with the opinion in the former appeal will not be held for error.

Devin, J„ dissents for the reasons stated in former appeal.

Clarkson and Sea well, JJ., concur in dissent.

Appeal by plaintiff from Hamilton, Special Judge, at November Term, 1940, of Pitt.

Affirmed.

Civil action to recover on double indemnity provision of a life insurance policy.

From judgment on verdict for defendant plaintiff appeals.

Smith, Wharton & Hudgins and J. B. James for defendant, appellee.

Albion Dunn for plaintiff, appellant.

Per Curiam.

This is the fourth appeal in this case. Former appeals are reported in 212 N. C., 354, 193 S. E., 293; 215 N. C., 402, 2 S. E. (2d), 17; and 217 N. O., 705, 9 S. E. (2d), 479, where the material facts are set forth.

The substantive evidence tending to show the circumstances under which deceased met his death offered in the trial below is substantially the same as that appearing in the record on the last appeal. There is no material variance. This evidence, considered in the light most favorable to tbe plaintiff, tends to show that the deceased suffered death as a result of a gunshot wound intentionally inflicted by another. If believed and accepted by the jury, when considered in connection with such evidence as tendered to contradict the same and to impeach the witness, it was such as to require a finding favorable to the defendant. The peremptory instruction given was in accord with the opinion in the former appeal reported in 217 N. C., 705, 9 S. E. (2d), 479.

In the judgment below there is

No error.

Devin, J., dissents for the reasons stated in former appeal.

Clarkson and Sea well, JJ., concur in dissent.