Gibson v. Central Manufacturers' Mutual Insurance ( 1950 )

62 S.E.2d 320 (1950) 232 N.C. 712

GIBSON
v.
CENTRAL MFRS. MUT. INS. CO.

No. 532.

Supreme Court of North Carolina.

November 29, 1950.

Smathers & Carpenter and James L. DeLaney, all of Charlotte, for defendant-appellant.

Jones & Small, Charlotte, for plaintiff-appellee.

WINBORNE, Justice.

Defendant's assignments of error based on exceptions to denial of its motion, aptly made, for judgment as of nonsuit are not well taken. Defendant, having (1) admitted the issuance of the policy of insurance on which plaintiff bases his action, and (2) set up in avoidance the defense that the issuance of the policy was procured by the false representations of plaintiff in the respects averred, has the burden of proof on the issues thereby raised. The burden of proof is on the party holding the affirmative. Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102; In re Atkinson's Will, 225 N.C. 526, 35 S.E.2d 638. And judgment of nonsuit will not be granted in favor of one on whom rests the burden of proof. Moreover, in the record on the appeal, there is no request for a directed verdict.

But the first issue submitted to the jury in the trial court is, in the use of the term "and/or", ambiguous and uncertain, and, hence, the verdict thereon is insufficient to support the judgment rendered.

While defendant's exception to the issues is general, and does not point to the use of the term "and/or" so used, its exception No. 21 to a portion of the charge does bring it into focus. The following is the portion of the charge to which this exception No. 21 relates: "If the defendant has failed to satisfy you that the plaintiff falsely misrepresented to the defendant, in applying for the insurance policy, that such automobile was new and/or that he paid $2794.00 for the car, it would be your duty to answer the issue No. " Moreover, the exception to the judgment rendered raises the question as to whether error in law appears upon the face of the record. Gulbreth v. Britt, 231 N.C. 76, 56 S.E.2d 15, and cases there cited. See also State v. Black, 232 N.C. 154, 59 S.E.2d 621; Hoover v. Crotts, N.C., 61 S.E.2d 705. Indeed, the appeal itself is considered and exception to the judgment and any other matters appearing upon the face of the record. Dixon v. Osborne, 201 N.C. 489, 160 S.E.579; Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22, and numerous other cases. And the record, in the sense here used, refers to the essential parts of the record, such as the pleadings, verdict and judgment. See Thornton v. Brady, 100 N.C. 38, 5 S.E. 910, and citations of it as shown in Shepard's North Carolina Citations. And where error is manifest on the face of the record, even though it be not the subject of an exception, it is the duty of the Court to correct it, and it may do so of its own motion, that is ex mero motu. G.S.§ 7-11, formerly C.S. § 1412, Rev.§ 1542, Code, § 957, and R.C. Ch. 33, sec. 6; Thornton v. Brady, supra; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; State v. Ashford, 120 N.C. 588, 26 S.E. 915; Appomattox Co. v. Buffaloe, 121 N.C. 37, 27 S.E. 999; State v. Truesdale, 125 N.C. 696, 34 S.E. 646; Griffith v. Richmond, 126 N.C. 377, 35 S.E. 620; Wilson v. Beaufort County Lumber Co., 131 N.C. 163, 42 S.E. 565; Ullery v. Guthrie, 148 N.C. 417, 62 S.E. 552; Moreland v. Wamboldt, 208 N.C. 35, 179 S.E. 9; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; Smith v. Smith, 223 N.C. 433, 27 S.E.2d 137.

A judgment, in its ordinary acceptation, is the conclusion of the law upon facts admitted or in some way established, and, without the essential fact, the court is not in a position to make final decision on the rights of the parties. Sedbury v. Southern Express Co., 164 N.C. 363, 79 S.E. 286, 288; Durham v. Hamilton, 181 N.C. 232, 106 S.E. 825; 30 Am.Jur. 821, Judgments, sec. 2. A judgment must be definite. 49 C.J.S., Judgments, § 22, p. 51. And while a verdict is not a judgment it is the basis on which a judgment may or may not be entered. 49 C.J.S., Judgments, § 4, p. 28. Hence a verdict should be certain and import a definite meaning free from ambiguity. Wood v. Jones, 198 N.C. 356, 151 S.E. 732. See also In re Will of Roediger, supra; Edge v. North State Feldspar Corp., 212 N.C. 246, 193 S.E. 2; Cody v. England, 216 N.C. 604, 5 S.E.2d 833.

In the Edge case, supra, the issue as framed was whether a certain provision was omitted from the deed in suit "by mutual mistake or by the fraud of the grantee". The jury answered "yes." And this Court held that the verdict is uncertain or ambiguous; that it is in the alternative; and that its inconclusiveness necessitated another trial. Compare State v. Williams, 210 N.C. 159, 185 S.E. 661. Moreover the use of the term "and/or" has not escaped the attention of this Court. Freeman v. City of Charlotte, 206 N.C. 913, 174 S.E. 453; State v. Ingle, 214 N.C. 276, 199 S.E. 10; State v. Mitchell, 217 N.C. 244, 7 S.E.2d 567.

In the Freeman case, supra on appeal from an order restraining a special election, the Court, in affirming the order, had this to say: "It is observed that the approval of the State School Commission, as provided by section 17, c. 562, Pub.Laws 1933, nowhere appears of record; and further that the use of the words `and/or' in said section adds nothing to its clarity if it does not create an ambiguity as to who shall request the tax levying authorities to call the election."

State v. Ingle, supra [214 N.C. 276, 199 S.E. 11], is an appeal by the State from a special verdict finding defendant "not guilty" of the charge of "carrying on the Plumbing and/or Heating contracting business, without having obtained a license to carry on the business of Plumbing and Heating contracting in this State". In finding no error, this Court said: "While there was no motion to quash the warrant, it may not be amiss to observe that it charges the defendant with `carrying on the Plumbing and/or Heating contracting business'. (citing cases). The use of `and/or' in the warrant adds nothing to its clarity." Citing Freeman v. Charlotte, supra.

And in State v. Mitchell, supra [217 N.C. 244, 7 S.E.2d 568], reversing a special verdict finding defendant guilty "of practicing or offering to practice, entering into or carrying on the plumbing and/or heating contracting business" the Court concluded with the piercing question, "Of what crime does he stand convicted?" citing State v. Ingle, supra.

Thus the Court has inferentially condemned the use of the term "and/or" in statutes, and in verdicts in judicial proceedings.

Moreover, the annotators of reported cases, and the text writers indicate that much has been written in condemnation of the term "and/or". It is declared, in effect, that the courts generally hold that the term "and/or" has no place in judicial proceedings,—pleadings, verdict or judgment. See Annotations 118 A.L.R. 1367 and 154 A.L.R. 866, on subject "And/or"; also, 3 C.J.S., and, p. 1069, and 3 Words and Phrases, Perm.Ed., p. 450.

In fine, issues should be couched in words of clear and certain meaning.

For error indicated, let there be a New trial.

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