Brinkley v. Nationwide Mutual Insurance Company , 271 N.C. 301 ( 1967 )

156 S.E.2d 225 (1967) 271 N.C. 301

James R. BRINKLEY
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.
WILSON TRANSPORT LEASE, INC.
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 290.

Supreme Court of North Carolina.

August 25, 1967.

Lucas, Rand, Rose, Morris & Meyer, Wilson, for defendant appellant.

Gardner, Connor & Lee, by J. M. Reece, Wilson, for plaintiff appellees.

PARKER, Chief Justice.

It is hornbook law that on a motion to nonsuit plaintiff's evidence is to be taken as true, and all the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. Defendant's evidence which tends to impeach or contradict plaintiff's evidence is not to be considered, but defendant's evidence may be considered to the extent that it is not in conflict with plaintiff's evidence and tends to make clear or explain plaintiff's evidence. 4 Strong's N.C. Index, Trial, § 21. "Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court," Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327, and do not justify a nonsuit. Keaton v. Blue Bird Taxi Co., 241 N.C. 589, 86 S.E.2d 93. Plaintiffs' evidence discloses that J. E. Allen gave H. C. Allen a written 96-hour permit for the use of his 1954 Cadillac. In the body of this instrument this language is used: "I/we the undersigned, a licensed dealer in the State of North Carolina, do hereby state that the vehicle described is the property of the undersigned and that it and the dealer plate designated are loaned to the person indicated below for a period of 96 hours from the time indicated." The body of this instrument shows that the date of this permit was October 31, and the time was 9:30 p. m. The accident, which is the basis of this action, occurred within the 96-hour period after his receipt of the possession of the 1954 Cadillac automobile. It is true that the defendant offered evidence that he gave him permission to use the automobile only until Monday morning, and that the accident occurred after then. It is also true that H. C. Allen's son and defendant's claims adjuster testified that H. C. Allen promised to return the automobile on Monday morning.

G.S. § 20-79(b) is concerned in part with a dealer in motor vehicles in respect to a person operating a car belonging to a dealer in automobiles, and provides in relevant part: "Provided further, that said persons shall, at all times while operating a motor vehicle under the provisions of this section, have in their possession a certificate on such form as approved by the Commissioner from the dealer, which shall be valid for not more than ninety-six hours."

The functions of the jury and the judge are separate and distinct, and neither may invade the province of the other. It is also hornbook law that the weight and credibility of the evidence remains in the province of the jury. Campbell v. Peoples Savings Bank & Trust Co., 214 N.C. 680, 200 S.E. 392; First Nat'l. Bank of Thomasville v. Stone, 213 N.C. 598, 197 S.E. 132. In weighing the credibility of the testimony, the jury has the right to believe any part or none of it. Brown v. Brown, 264 N.C. 485, 141 S.E.2d 875. For us to say as a matter of law that H. C. Allen was not given express written permission by J. E. Allen to drive this car for 96 hours is for us to consider the evidence not in the light most favorable to plaintiffs. It is manifest from the evidence in this case the jury chose, as it had an inherent right to do, to believe that J. E. Allen gave H. C. Allen permission to drive this automobile for 96 hours as appears in the written document signed by J. E. Allen, and introduced in evidence by the plaintiffs, and did not choose to believe the oral part of J. E. Allen's testimony that permission was granted merely until Monday morning. There is legal evidence of every material fact necessary to support the verdict. This is said in 4 Strong's N.C. Index, Trial, § 22, p. 321: "Nonsuit may not be properly entered if the material facts are in dispute and the evidence in regard to the facts is such that conflicting conclusions may reasonably be reached thereon. If upon the whole evidence there are inferences tending to support plaintiff's case, or if there is more than a scintilla of evidence in support of plaintiff's claim, or there is any substantial evidence supporting the essential elements of the cause of action, nonsuit is properly denied."

This is stated in Gales v. Smith, 249 N.C. 263, 106 S.E.2d 164: "It is noted that discrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court."

This is said in Supplement to 4 Strong's N.C. Index, Trial, § 18:

"Upon motion to nonsuit, the function of the court is to determine only whether the facts and circumstances in evidence, considered in the light most favorable to the plaintiff, tend to make out and sustain the cause of action alleged in the complaint. And it is the function of the jury alone to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony, and determine what the evidence proves or fails to prove. In weighing the credibility of the testimony, the jury has the right to believe any part or none of it."

In Keith v. United Cities Gas Co., 266 N.C. 119, 146 S.E.2d 7, it is said:

"Upon the defendants' motions for judgment of nonsuit, the plaintiff's evidence is to be interpreted in the light most favorable to her, all reasonable inferences favorable to her must be drawn therefrom, conflicts therein are to be resolved in her favor and evidence of the defendant establishing a different factual situation must be disregarded."

The court properly denied the defendant's motion for judgment of compulsory nonsuit. The court correctly denied the motion for a directed verdict for the simple reason that plaintiffs' evidence is sufficient to carry the case to the jury, and "an instruction to answer an issue in a specified way is a directed verdict and is never proper when the question is for the determination of a jury." 4 Strong's N.C. Index, Trial, § 31. The court correctly denied defendant's motion for a peremptory instruction for the evidence is conflicting upon the issues submitted to the jury. 4 Strong's N.C. Index, Trial, § 31.

Defendant in its brief makes no reference to the form of the judgments entered in this consolidated case.

In the trial below we find

No error.