Shearin v. National Indemnity Company

PARKER, Judge.

This appeal presents the question whether under the Constitution and laws of this State a summary judgment may be granted in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. On authority of Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971), we conclude that the answer is No.

G.S. 1A-1, Rule 56(a) clearly contemplates the possibility of granting a summary judgment in favor of a “party seeking to recover upon a claim, counterclaim, or crossclaim,” and normally such a party has the burden of proof. Subsection (e) of Rule 56 also contains the following:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

In the present case defendant did not respond by affidavit pr otherwise to plaintiff’s motion for summary judgment but rested its defense entirely upon the allegations and denials contained in its answer. Therefore, were we at liberty to give full scope to Rule 56, we would agree with the trial court in the present case that, upon the basis of plaintiff’s uncontradicted affidavits,-there-is -here no genuine-issue as to any material fact. We would'further agree with the trial court’s conclusion of law that, under the facts as disclosed by plaintiff’s affidavits and as to which no genuine issue has been shown to exist, plaintiff is entitled to recover under the policy of insurance issued to him by the defendant.

In Cutts v. Casey, supra, our Supreme Court held, citing Article I, § 25 of the Constitution of North Carolina,, that, a trial judge in this State may not direct a verdict under Rule 50 in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses: Wé are unable .to .see why the principle announced in Cutts .v. Casey does not apply with at least- equal force when the question is presented by a motion for summary judgment unde'r Rule 56.

That both parties in the present case moved for summary judgment does not change the situation. A defendant may contend that if his . legal theory of the case be accepted, n9 genuine issue of fact, exists, and at the same time may also legitimately contend.that if his opponent’s legal theory be adopted, a genuine dispute as to a material fact does exist.

Because we deem Cutts v. Casey controlling, the summary judgment in favor of the plaintiff, is reversed and this cause is remanded for trial. -

Reversed and remanded.

Judge Britt concurs. Judge Vaughn dissents.