Jenrette Transport Co. v. Atlantic Fire Insurance ( 1952 )

73 S.E.2d 481 (1952) 236 N.C. 534

JENRETTE TRANSPORT CO.
v.
ATLANTIC FIRE INS. CO.

No. 451.

Supreme Court of North Carolina.

November 26, 1952.

Murray Allen, Raleigh, for defendant, appellant.

Simms & Simms and John M. Simms, Raleigh, for plaintiff, appellee.

DENNY, Justice.

This appeal turns on whether or not the plaintiff offered more than a scintilla of evidence in the trial below in support of its allegation that plaintiff's truck and some of the tanks which were being transported, collided with the side of the underpass. If no part of the truck or trailer collided with the underpass, the plaintiff is not entitled to recover, irrespective of any damage that may have resulted from the tanks having collided therewith. Cf. Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295, where the cargo insurance policy contained no exclusion clause such as that contained in the present contract.

The plaintiff is entitled to have the evidence considered in the light most favorable to it and to the benefit of every reasonable inference to be drawn therefrom. Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251. But, when the evidence is so considered, it must do more than raise a suspicion, conjecture, guess, surmise, or speculation as to the pertinent facts in order to justify its submission to the jury. Denny v. Snow, 199 N.C. 773, 155 S.E. 874.

A verdict or finding must rest upon proven facts or upon facts of which there is substantial evidence. A verdict or finding in favor of one having the burden of proof will not be upheld if the evidence upon which it rests raises no more than mere conjecture, guess, surmise, or speculation. "There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be grounded on a reasonable certainty as to the probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities." 23 C.J., pp. 51-52; See also, 32 C.J.S., Evidence, § 1042; State v. Johnson, 199 N.C. 429, 154 S.E. 730; Denny v. Snow, supra; Broughton v. Standard Oil Co., 201 N.C. 282, 159 S.E. 321; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Sutton v. Herrin, 202 N.C. 599, 163 S.E. 578; Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622; Cummings v. Atlantic Coast Line R. R., 217 N.C. 127, 6 S.E.2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Mills v. Moore, 219 N.C. 25,12 S.E.2d 661; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; Foreman-Blades Lumber Co. v. Elizabeth City, 227 N.C. 270, 41 S.E.2d 761. As was said by the late Chief Justice Stacy, in State v. Johnson, supra [199 N.C. 429, 154 S.E. 731]: "The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury. But, as was said in the case where a darky was being prosecuted for the larceny of a pig, there must be more than the argument of the solicitor: `Gentlemen of the jury there was a hog. Here is a negro. Take the case.' Wilson v. [Tilghman] Lumber Co., 194 N.C. 374, 139 S.E. 760, 761; Moore [& Co.] v. [Atlantic Coast Line] R. R., 173 N.C. 311, 92 S.E. 1."

What is the evidence in this case to support the finding that the plaintiff's truck or trailer collided with the underpass?

The evidence of Mr. Jenrette to the effect that about two weeks after this collision he examined the underpass and found certain "scarring" on the right pier about 7 feet from the ground, has no probative value, and the defendant's objection to its admission should have been sustained.

The plaintiff must rely upon the testimony of its driver, Roy Hargis, and the reasonable inferences that may be drawn therefrom to sustain the verdict on the first issue, and when his testimony is so considered, if it is insufficient to sustain the verdict, the defendant's motion for judgment as of nonsuit must be allowed.

This witness testified that no part of the tractor or trailer came in contact with the bridge either at the top or at the sides. He also made a sworn statement to this effect to an agent of the defendant five days after the collision occurred, and repeated it two or three times in his oral testimony at the trial.

Counsel for plaintiff was permitted by the court not to impeach this witness but to cross-examine him on the ground that he was hostile. Pursuant to this ruling, counsel tried diligently and with some success to get the witness to characterize his signed statement as well as his testimony about what occurred at the time of the collision as being merely his opinion or a guess on his part. This added nothing by way of proof that plaintiff's truck or trailer came in contact with the underpass, but merely tended to raise a doubt as to what did cause the collision and thereby leave the ascertainment of the crucial facts in the case wholly to conjecture, surmise, or speculation. Even so, while being so examined, the witness said: `When I seen the tanks, pulled over and looked it looked as if the top tanks had hit the bridge." Moreover, he testified on cross-examination by defendant's counsel, that two of the four or five large tanks that were standing up in the front of the trailer were bent close to the top; that he entered the underpass as near in the middle as possible and when he stopped, the rear end of the trailer was still under the underpass; that at the time of the collision he was going only 12 or 15 miles an hour; that when he got off the truck, part of the stake-body of the trailer on his right-hand side had been broken off; that no part of the tractor or trailer came in contact with the bridge, and there was "no sign of a tractor or trailer going to the side, being forced over on the right." Furthermore, he testified that the sworn statement that he made and signed before a Notary Public on 12 April, 1949, was correct "excepting that I couldn't swear to what caused the tanks to hit the underpassing."

If, as this witness testified, no part of the truck or trailer came in contact with the underpass, and there seems to be no evidence to the contrary, unless it be by inference based on mere speculation or conjecture, it becomes immaterial whether the three stakes on the trailer were broken by the pressure of the tanks against them or by the pressure of the tanks against the chains by which they were held in place and tied to the sides of the trailer. In any event, the right-hand side of the platform of the trailer, including the steel band, or bands, which held the upright stakes in place, was not damaged.

The sworn statement referred to above was introduced in evidence by the defendants. However, in considering the motion for judgment as of nonsuit renewed at the close of the entire evidence, the evidence of the defendant which is not in conflict with the evidence of the plaintiff, may be used to explain or make clear what has been offered by the plaintiff. "This was the purpose of the Legislature in providing that such motion might be renewed at the conclusion of all the evidence." State v. Fulcher, 184 N.C. 663, 113 S.E. 769; Hare v. Weil, 213 N.C. 484, 196 S.E. 869.

The evidence adduced in the trial below, in our opinion, is insufficient to support the verdict. The motion for judgment as of nonsuit should have been allowed.

Reversed.

PARKER, J., took no part in the consideration or decision of this case.