Crouse v. Vernon , 232 N.C. 24 ( 1950 )

59 S.E.2d 185 (1950) 232 N.C. 24

CROUSE
v.
VERNON et al.

No. 530.

Supreme Court of North Carolina.

May 3, 1950.

J. Mack Holland, Jr., James Mullen, Raleigh, for plaintiff-appellee.

S. B. Dooley, Garland & Garland, Raleigh, for defendant-appellants O. M. Vernon and First State Bank & Trust Co. of Mount Holly, N. C.

SEAWELL, Justice.

It is often not advisable, and sometimes impossible to set out in detail all the challenges made to the validity of a trial, with accompanying explanatory matter, in the space allotted for statement of the case and the opinion. All these objections have, of course, received due consideration; but we are compelled to confine discussion to those which have been advanced as disclosing more outstanding prejudicial error. Those to which more importance seems to have been given are discussed.

1. Objection to the admission and exclusion of evidence.

An exception is directed to the admission of plaintiff's testimony that because of her husband's illness she had been compelled to work (she had previously stated at a cotton mill in Charlotte), on the ground that this was irrelevant to the issue and constituted an appeal to the sympathy of the jury, citing Shepherd v. W. T. Mason Lumber Co., 166 N.C. 130, 81 S.E. 1064; Dellinger v. Elliott Building Co., 187 N.C. 845, 123 S.E. 78; State v. Page, 215 N.C. 333, 1 S.E.2d 887; State v. Warren, 227 N.C. 380, 42 S.E.2d 350.

This testimony was let in on direct examination after, on the preceding cross-examination, defendants' counsel had sought to impeach the plaintiff witness, and attack her credibility by questions tending to show that her house, in which there were several daughters, was so disorderly and badly kept as to excite the complaint of neighbors and cause police visitation.

Some of these questions elicited answers apparently unsatisfactory to counsel and these questions persisted after the court sustained objections.

Notwithstanding the liberality extended to cross-examination, counsel asking impeaching questions as to matters he would not be permitted to prove independently is bound by the answers; and sometimes damaging implications often attend the simple asking of questions where no answer is allowed. In the particular case cross-examination was of such a character as to invite the testimony given by the witness on re-direct. These matters generally are within the discretion of the court; State v. Warren, supra; but it would be a strange exercise of discretion which permitted a cross-examination irrelevant to the issue but calculated to impeach the witness as morally unfit to be believed, and deny her the right to explain or repair the attempted damage. State v. Warren, supra. The defendant's counsel opened the door and if the return sally was germane to the attack, counsel cannot complain if it incidentally appealed to sympathy.

Some of the questions of this character asked the plaintiff by counsel for the defendants were excluded and objection was made by the defendants. "(1) Weren't conditions so bad there (in your home in Charlotte) that the Welfare Department made you take Joyce away from there?" (2) "You testified for them when Hall was suing Stafford because he had separated your daughter from Hall?" (3) "You heard neighbor after neighbor testify that Stafford * * * would go there and spend nearly every morning with your daughter?"

The right to cross-examine witnesses on all matters brought out in the examination in chief is absolute. But the cross-examination of the character here disclosed is within the reasonable discretion of the court and we think the trial judge held to the balance fairly within the discretion permitted him. State v. Coleman, 215 N.C. 716, 2 S.E.2d 865.

An objection has been made to the testimony of witnesses directed to the measure of damages caused by the fire: That they were not qualified to express an opinion because they did not testify that they saw the premises immediately before and immediately after the fire.

We are of the opinion that the evidence disclosed to the jury that both views, "before and after," were taken with sufficient nearness to the burning as to make the evidence competent; Beam saw the house a few days before the fire, and what remained of it two or three days after it. "Immediately," in the strict sense, is not essential. It is a question of reasonable nearness. Grubbs v. North Carolina Home Ins. Co., 108 N.C. 472, 13 S.E. 236, 23 Am. St.Rep. 62; Hart v. Atlantic Coast Line R. Co., 144 N.C. 91, 56 S.E. 559, 12 Ann. Cas. 706; Newsom v. Cothrane, 185 N.C. 161, 116 S.E. 415; Wyatt v. Seaboard Air Line R. Co., 156 N.C. 307, 72 S.E. 383.

2. Demurrer to the evidence and motion for nonsuit.

The theory on which the motion to nonsuit is pressed appears to be that the evidence as to the terms of the purported contract, as testified to by the plaintiff, renders it too vague to constitute a completed contract, breach of which would give rise to a cause of action. The main defect criticized as fatal is that it does not set a definite date for its performance; that Mrs. Crouse had no purpose in mind in obtaining it except in view of the loan for which she implied; that she had paid for no insurance; and if there had been an agreement defendant would have been allowed a reasonable time to write or procure the insurance.

In presenting these views in the brief appellants resort in part to defendants' evidence in support of their position. But looking to the plaintiff's evidence in its most favorable light, there is ample evidence tending to show that defendant Vernon entered into an agreement to write or procure the insurance upon the house in question and in a definite amount; that plaintiff offered to pay for it and he agreed to take it out of the amount of her loan and would not permit her to do so; that she inquired about the insurance with some diligence, and at one time, because of the hurry of Vernon to get away to Charlotte, he told her he had not attended to it but would, with assurance that if she attended to the construction of the house he would attend to the insurance. She was led to believe that the house really was insured both for her own benefit and that of the bank.

The contract to write or procure insurance on plaintiff's building will not be rejected for vagueness because it fixed no date for performance of the time within which the insurance should become in force. We do not understand that this is usual in a contract of this nature. Under plaintiff's evidence (which on demurrer must be taken as true), the contract was sufficiently definite. Under it the defendant was charged with good faith and due care in its performance. Couch on Insurance, Sec. 1215; 4 Appleman, Insurance Law and Practice, § 2261. This per se requires that the insurance must be placed in a reasonable time, as implied by the nature and purpose of the contract. 4 Appleman, Insurance Law and Practice, § 2261, page 113, supra, and in an action for its breach this may be a matter for the jury, or, in some situations where the delay is per se unreasonable, a matter of law for the court; but its omission will not vitiate the contract.

On the evidence the defendant is not entitled to limit the purpose of the insurance to the necessities of the loan and thus make its procurement optional with the mortgagee. The mortgagee may, and according to the evidence did, insure for his own benefit and also for the benefit of the mortgagor, 4 Appleman, Insurance Law and Practice, § 2264; and the sum named in the proposed agreement corroborates the plaintiff in this respect since it far exceeded the loan.

Referring again to the evidence, the defendants cannot avail themselves of the defense that plaintiff did not pay the premium on the policy, since she offered to pay it and defendant agreed to deduct it from her account. Strikingly apt in this connection is Dixon v. Osborne, 204 N.C. 480, loc.cit. 487, 168 S.E. 683, loc.cit. 686, in which it is said: "The plaintiff J. W. Dixon had an agreement with defendants Osborne and Newcomb that they would advance the premium. They lulled plaintiffs into security by the promise and did not pay the premium. Then again, when $2,500 was paid, directions were specifically made by plaintiffs that out of the amount the insurance premium was to be paid. The exception in the record as to this question in relation to this matter cannot be sustained." See cases supra.

The demurrer to the evidence was properly overruled.

3. Instructions to the jury. The defendants contend that the trial judge should have given the jury an instruction on the matter of reasonable time for the performance of the contract. There was no request for such an instruction. We doubt whether on the record presented the defendants would be entitled to such an instruction at all. They deny the contract in toto and tried the case upon that theory; and such instruction would have been hypothetical. The defendant Vernon agreed about February 1st to place the insurance, and the fire did not occur until the following April 9th. Under the evidence we are of the opinion that the court was not required to give the instruction as a matter of legal duty without special request on the part of the defendant. Penn v. Standard Life Ins. Co., 160 N.C. 399, 76 S.E. 262, 42 L.R.A., N.S., 597; Livingston v. Essex Investment Co., 219 N.C. 416, 14 S.E.2d 489.

We find no error in the instruction given the jury on the measure of damages. It was not inconsistent to refer to "cash value" and "market value" as interchangeable terms. Much hammering of this subject has not shaped any better way of arriving at "cash value" of property (such as does not inherently fix its own value) than by applying the rule of market value.

The rule has become so familiar in popular and legal use that it needs no preliminary schooling of a witness to enable him to apply it, any more than it does a jury to enable them to understand it. The court was not required to go into an explanation of the meaning of the rule without special request.

The instruction limiting recovery to the cost of replacement and to the amount of insurance agreed upon was not unfavorable to the defendants and, therefore, they were not prejudiced by it.

It is urged that there is reversible error in the failure of the judge to formally charge the jury that the burden of the second issue rested upon the plaintiff. To give such an instruction the court must ignore the theory upon which the case was tried, and the categorical admissions of the defendant Vernon in the evidence that no insurance had been procured or written by him. This left no evidence in that respect to be weighed or determined by the jury.

In a civil action, issues, in the form of questions, are addressed to the jury to aid them in consideration of the evidence and determination of the truth of the matter with which the issues are concerned. They are framed on both the pleadings and the evidence; Allison v. Steele, 220 N.C. 318, 17 S.E.2d 339; Brown v. Daniel, 219 N.C. 349, 13 S.E.2d 623; and when in the evidence and by his own admission the defendant has given the answer, he cannot complain that his own testimony was not submitted to a jury test.

The jury having found in answer to the first issue that the defendants entered into a valid contract to procure the insurance, and Vernon having admitted its nonperformance,—to ascertain which was the only function of the second issue,— the instruction given the jury was logical and free from error. McIntosh, North Carolina Practice and Procedure, 632; 53 Am.Jur. 267; Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 125 S.E. 398.

Nonperformance of a valid contract is a breach thereof regardless of whether it occurs deliberately or through forgetfulness or neglect, unless the person charged (in this case the defendant) shows some valid reason which may excuse the nonperformance; and the burden of doing so rests upon him.

All the parties to this action stipulated that any liability of the defendant Vernon was that of the corporate defendant, for whom, it is stipulated, he was acting.

On these considerations we are unable to interfere with the result of the trial. We find no error.

No error.