Blackburn v. St. Paul Fire & Marine Insurance

At the last term (116 N.C. 821) the judgment in this case was affirmed in all respects, except that a new trial was granted only as to the 8th and 9th issues, to-wit: "Did plaintiffs agree, conspire and confederate together to burn the hotel and furniture?" "Did W.A. Blackburn wilfully burn or cause to be burned the hotel and furniture described in the complaint?"

On the trial of these issues, from which this appeal comes, the defendant conceded that the burden of proving the affirmative of the issues was upon it, and offered in evidence the assignment on the policies, without stating for what purpose. The court excluded the evidence, and the defendant offered no other evidence. The court directed the jury, as the defendant had introduced no evidence, to answer each issue "No," which they did.

In this Court the defendant excepts because the evidence offered was ruled out, insisting that that would constitute a basis of an argument as to the motions of the plaintiffs bearing on the 8th and 9th issues.

The fact appearing from the assignment, to-wit, that W.A. Blackburn was the assignee of the policies (by consent of the defendant) and that C. A. Blackburn was the owner of the property insured, was distinctly alleged and admitted in the pleadings, and was relied upon in the former trial as a main ground of defense, and was so argued in this Court. There was then no need to prove a fact agreed upon or admitted in the record, and the rejection of the evidence offered for that purpose was not error. No reason appears why a judgmentnon obstante veredicto should have been rendered in favor of the defendant, as urged by it. This Court could consider no (533) argument except on questions arising out of the last trial. All other matters were res judicata. Gordon v. Collett, 107 N.C. 362.

Affirmed.