Fayetteville Aviation, Inc. v. Insurance Co. of North America

199 S.E.2d 485 (1973) 19 N.C. App. 557

FAYETTEVILLE AVIATION, INC.
v.
INSURANCE COMPANY OF NORTH AMERICA.

No. 7312SC622.

Court of Appeals of North Carolina.

October 10, 1973.

McCoy, Weaver, Wiggins, Cleveland & Raper by Richard M. Wiggins and Alfred E. Cleveland, Fayetteville, for plaintiff appellant.

Anderson, Nimocks & Broadfoot by Henry L. Anderson, Jr., Fayetteville, for defendant appellee.

HEDRICK, Judge.

Plaintiff first assigns as error the refusal of the trial court to allow Ronald Lee Peters to testify that he knew that Martin E. Middleton had a Student Pilot's Certificate when he enrolled at Fayetteville Aviation, Inc. Admission or exclusion of this testimony is governed by the best evidence rule. This rule is predicated upon the premise that "a writing itself is the best evidence of its contents, and ordinarily the original writing itself is the only evidence admissible to prove its contents." 3 Strong, N.C.Index 2d, Evidence, Sec. 31, p. 646; Wendell Tractor & Implement Company, Inc. v. Lee, 9 N.C. App. 524, 176 S.E.2d 854 (1970). A "Student Pilot Certificate" is a paper writing with specific language and endorsements thereon indicating the status of the student pilot, and, unless its production is excused, it must remain the best evidence of the matter sought to be proved. Plaintiff contends that the best evidence rule has no application in this instance because the writing is only collaterally involved. We are unable to agree with this position, because "(w)here the writing embodies a contract or other transaction between the parties to the action, and it forms the basis of the cause of action or defense, clearly it is not collateral and the best evidence rule applies." Stansbury, N.C. Evidence, Brandis Revision, Vol. 2, Sec. 191, p. 104. This assignment of error is overruled.

The plaintiff next maintains that the court committed error in its construction of Endorsement No. 7 of the aircraft insurance policy. Plaintiff asserts that any ambiguities and uncertainties in an insurance policy must be construed in favor of the insured and that insurance policies prepared by the insurer will be liberally construed in favor of the insured. While we recognize the soundness of these rules, See Counch on Insurance, 2d Ed., Vol. 1, Sec. 15:73, pp. 776-781, Fireman's Fund Insurance Co. v. N. C. Farm Bureau Mutual Insurance Co., 269 N.C. 358, 152 S.E.2d 513 (1966), it is an equally well-known and accepted tenet that the language of a contract must be given its ordinary meaning in the absence of ambiguity. Appleman, Insurance Law and Practice, Vol. 13, Sec. 7428, p. 137. A careful perusal of Endorsement No. 7 yields the conclusion that there is no ambiguity present. "Ambiguity in the terms of an insurance policy is not established by the mere fact that the plaintiff makes a claim based upon a construction of its language which the company asserts is not its meaning. * * * If (ambiguity) is not (present) the court must enforce the contract as the parties have made it and may not, under the guise of interpreting an ambiguous provision, remake the contract and impose liability upon the company which it did not assume and for which the policyholder did not pay." Wachovia Bank and Trust Co. v. Westchester Fire Insurance Co., 276 N.C. 348, 172 S.E.2d 518 (1970). Thus, this assignment of error is without merit.

The judgment appealed from is affirmed.

CAMPBELL and MORRIS, JJ., concur.