{
  "id": 8609255,
  "name": "HANES FUNERAL HOME, INC., v. DIXIE FIRE INSURANCE COMPANY",
  "name_abbreviation": "Hanes Funeral Home, Inc. v. Dixie Fire Insurance",
  "decision_date": "1939-12-13",
  "docket_number": "",
  "first_page": "562",
  "last_page": "565",
  "citations": [
    {
      "type": "official",
      "cite": "216 N.C. 562"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "199 S. E., 266",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "214 N. C., 300",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8630217
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/214/0300-01"
      ]
    },
    {
      "cite": "196 S. E., 869",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "213 N. C., 484",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8628756
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/213/0484-01"
      ]
    },
    {
      "cite": "140 S. E., 598",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "194 N. C., 656",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8615578
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/194/0656-01"
      ]
    },
    {
      "cite": "113 S. E., 769",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "184 N. C., 663",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11271981
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/184/0663-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 427,
    "char_count": 8484,
    "ocr_confidence": 0.475,
    "pagerank": {
      "raw": 1.3500716393978482e-07,
      "percentile": 0.6331345958779836
    },
    "sha256": "1f5d99759465e024520fc533db0bbf6e84d2dcdf3fc9259134a3af570cc84b11",
    "simhash": "1:a436f89c561a23b7",
    "word_count": 1462
  },
  "last_updated": "2023-07-14T17:26:30.134660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HANES FUNERAL HOME, INC., v. DIXIE FIRE INSURANCE COMPANY."
    ],
    "opinions": [
      {
        "text": "Barnhill, J.\nThat the policy of insurance was issued and was in full force and effect at the time of the damage to plaintiff\u2019s car was admitted. The plaintiff offered evidence tending to show that the car was left in the garage at the home of its president; that subsequently it was found on the road between Greensboro and Siler City in a badly damaged condition, and that the damage thereto exceeded $1,000. The plaintiff then rested and the defendant moved to dismiss as of nonsuit,, which motion was overruled and the defendant excepted.\nThe defendant then offered the testimony of L. H. Nelson, nephew of Mrs. Hanes, tending to show that he took the car for use on a trip to-Siler City and the circumstances under which he took it. Thereupon, the defendant renewed his motion to dismiss as of nonsuit, which was overruled and the defendant excepted.\nWas there error in the refusal of the court to dismiss the action as of nonsuit, on motion of the defendant, at the conclusion of all the evidence ?\nTheft is the felonious taking and removing of personal property with intent to deprive the rightful owner of it; larceny. Webster\u2019s New International Dict. (2d). Larceny is the wrongful and fraudulent taking and carrying away by one person of the personal goods of another with the felonious intent to convert them to his, the taker\u2019s, use, and make them his property without the consent of the owner. To constitute larceny tbe property must be taken and tbe taking must be under sueb circumstances as to amount technically to a trespass; there must be some asportation or carrying away of tbe property; and botb tbe taking and tbe carrying away must be with felonious intent \u2014 an intent to steal \u2014 existing at tbe time. Callahan\u2019s Cyc. Law Dict. (2d).\nTbe evidence of tbe plaintiff tending to sbow tbat its automobile, wbicb was left in a garage at tbe borne .of its president, was later found in tbe country between Greensboro and Siler City, standing alone and unexplained, might justify tbe inference tbat it was stolen. However, tbe circumstances of tbe taking are fully explained by tbe evidence of tbe defendant. This evidence is corroborated by testimony offered by tbe plaintiff' tbat after tbe wreck Nelson was in a hospital in Greensboro suffering from wounds received. Tbe explanatory evidence offered by tbe defendant is uncontradicted and unimpeacbed.\nIt is well established in this jurisdiction tbat in considering tbe motion to dismiss as of nonsuit tbe evidence must be viewed in tbe light most favorable to tbe plaintiff. He is entitled to every reasonable intendment thereon and every reasonable inference therefrom, and tbe evidence of tbe defendant, unless favorable to tbe plaintiff, is not to be taken into consideration, except tbat when such evidence is not in conflict with tbe plaintiff\u2019s testimony it may be used to explain or make clear tbat wbicb has been offered by tbe plaintiff. S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Sellars v. Bank, 214 N. C., 300, 199 S. E., 266.\nTbe testimony offered by tbe defendant did not tend to contradict or impeach tbe evidence of tbe plaintiff. It only served to amplify and explain tbe same and tended to affirm tbe inference to be drawn from tbe plaintiff\u2019s evidence tbat tbe car bad been removed by someone other than an employee of tbe plaintiff. It is, therefore, a proper subject of consideration on tbe motion to nonsuit made at tbe conclusion of all tbe testimony. \"When so considered tbe evidence fails to disclose any unlawful and felonious intent on tbe part of Nelson in taking and using tbe car, without wbicb there could be no theft. As to this there is a total failure of proof.\nBut tbe plaintiff contends and earnestly insists that tbe conduct of Nelson constituted a violation of C. S., 4262, commonly referred to as tbe Temporary Larceny Statute. If we concede tbat tbe policy of insurance against theft includes and embraces statutory larceny such as is defined by this section of the Code, it will not avail tbe plaintiff. To constitute this offense it must likewise appear tbat tbe taking was not only secretly and against tbe will of tbe owner of tbe property but tbat it was also with an unlawful and felonious intent, for a felonious intent is an essential element of larceny, as defined in tbis statute, as well as at common law.\nThere was error in tbe refusal of tbe court below to grant tbe motion of tbe defendant to dismiss tbe action as of nonsuit at tbe conclusion of all tbe evidence.\nReversed.",
        "type": "majority",
        "author": "Barnhill, J."
      }
    ],
    "attorneys": [
      "Frazier \u25a0& Frazier for plaintiff, appellee.",
      "Brooks, McLendon & Holderness for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "HANES FUNERAL HOME, INC., v. DIXIE FIRE INSURANCE COMPANY.\n(Filed 13 December, 1939.)\n1. Larceny \u00a7 1\u2014\nIn order to constitute larceny it is necessary that tbe personalty be taken under circumstances amounting to a technical trespass and that there be some asportation, and that both the taking and the carrying away be with felonious intent to steal.\n2. Tidal \u00a7 32b\u2014\nUpon motion to nonsuit the evidence must be considered in the light most favorable to plaintiff and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom.\n3. Same\u2014\nWhile ordinarily defendant\u2019s evidence should not be considered in passing upon his motion to dismiss as of nonsuit, unless it is favorable to plaintiff, it is properly considered when it is not in conflict with plaintiff\u2019s evidence, but is in explanation and clarification thereof.\n4. Insurance \u00a7 58 \u2014 Held: There was total failure of proof of theft of car and nonsuit should have been granted in action on theft policy.\nPlaintiff\u2019s evidence tended to show that its car was found wrecked on the highway and that it had been taken by someone other - than an employee. Defendant\u2019s evidence tended to show that the car was parked in the garage of plaintiff\u2019s president, that upon leaving town the president turned over the keys to a Negro employee to be delivered to the office, that the employee gave the keys to the president\u2019s nephew who was temporarily staying at the president\u2019s home, and that the nephew, upon discovering that his own car was not running satisfactorily, took plaintiff\u2019s car in order to meet a personal engagement in another town, and that the wreck occurred on his return trip. Held: Defendant\u2019s evidence, being in explanation and clarification of plaintiff\u2019s evidence, was properly considered upon defendant\u2019s motion to nonsuit, and the evidence fails to show any felonious intent in the taking of the car necessary to constitute either common law or statutory larceny under O. S., 4246, and defendant\u2019s motion to nonsuit in plaintiff\u2019s action on an automobile theft policy covering the ear should have been granted.\nAppeal by defendant from Clement, J., at August Term, 1939, of GhnxEORD.\nReversed.\nCivil action on a contract of insurance to recover damages alleged to have been sustained as a result of alleged theft of a motor vehicle.\nOn about 1 July, 1938, the defendant issued its policy covering the plaintiff\u2019s fleet of motor vehicles, including the motor vehicle mentioned and described in the complaint, insuring against theft and any damages caused thereby.\nHenry L. Hanes was the president and treasurer of plaintiff corporation. The LaSalle automobile described in the complaint and two others,, when not in use, were kept in a garage at his home. On 7 October, 1938,. Hanes left the LaSalle in the garage and gave the keys to the car to a Negro employee of the plaintiff to be delivered to the office. He and his. wife left for a trip to New York. One L. H. Nelson, who is the nephew of Mrs. Hanes, was staying temporarily in the Hanes\u2019 home and was-there while Mr. and Mrs. Hanes were on their trip to New York.\nOn the night of 7 October, 1938, Nelson had planned to go on his own automobile to Siler City to keep an engagement with a girl friend. He discovered that his ear was not running satisfactorily. The Negro, employee of the plaintiff having theretofore delivered to him the keys to the car, Nelson took the LaSalle from the garage to use on his trip. On his return he was forced off the road and the car was badly damaged and he suffered physical injuries.\nIt is admitted that the damage to the car was in excess of $1,000, the face amount of the policy in respect to theft. There was a verdict and judgment for the plaintiff and the defendant excepted and appealed.\nFrazier \u25a0& Frazier for plaintiff, appellee.\nBrooks, McLendon & Holderness for defendant, appellant."
  },
  "file_name": "0562-01",
  "first_page_order": 628,
  "last_page_order": 631
}