{ "id": 8610819, "name": "MAXWELL POLANSKY v. MILLERS' MUTUAL FIRE INSURANCE ASSOCIATION OF ILLINOIS", "name_abbreviation": "Polansky v. Millers' Mutual Fire Insurance", "decision_date": "1953-10-21", "docket_number": "", "first_page": "427", "last_page": "432", "citations": [ { "type": "official", "cite": "238 N.C. 427" } ], "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": "59 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600039 ], "opinion_index": 0, "case_paths": [ "/nc/232/0311-01" ] }, { "cite": "59 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599332 ], "opinion_index": 0, "case_paths": [ "/nc/232/0292-01" ] }, { "cite": "57 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630845 ], "opinion_index": 0, "case_paths": [ "/nc/231/0510-01" ] }, { "cite": "143 S.W. 2d 635", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10227825 ], "opinion_index": 0, "case_paths": [ "/sw2d/143/0635-01" ] }, { "cite": "72 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622548 ], "opinion_index": 0, "case_paths": [ "/nc/236/0102-01" ] }, { "cite": "188 S.E. 102", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627882 ], "opinion_index": 0, "case_paths": [ "/nc/210/0585-01" ] }, { "cite": "193 S.E. 728", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613572 ], "opinion_index": 0, "case_paths": [ "/nc/212/0516-01" ] }, { "cite": "49 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165775 ], "opinion_index": 0, "case_paths": [ "/nc/229/0305-01" ] }, { "cite": "16 L.R.A. (N.S.) 77", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "94 P. 27", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "42 Colo. 156", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2564678 ], "opinion_index": 0, "case_paths": [ "/colo/42/0156-01" ] }, { "cite": "78 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "69 S.E. 2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622681 ], "opinion_index": 0, "case_paths": [ "/nc/235/0227-01" ] } ], "analysis": { "cardinality": 704, "char_count": 15184, "ocr_confidence": 0.476, "pagerank": { "raw": 2.444958912637292e-07, "percentile": 0.8034796623278037 }, "sha256": "06c0d3bb651b0cc4500fcb579e410c24f9227625b4b352892bfcb5263e6410bd", "simhash": "1:b171fd9ef7d99177", "word_count": 2624 }, "last_updated": "2023-07-14T17:58:50.226870+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAXWELL POLANSKY v. MILLERS\u2019 MUTUAL FIRE INSURANCE ASSOCIATION OF ILLINOIS" ], "opinions": [ { "text": "Parker, J.\nThe defendant assigns as Errors Nos. 4 and 5 the trial court\u2019s denying its motion for judgment of nonsuit made at the close of 'the plaintiff\u2019s evidence, and renewed at the close of all the evidence. Gr.S. 1-183.\nIn passing upon such a motion it is well settled law that the plaintiff\u2019s evidence is taken as true, and given every reasonable inference in favor of the plaintiff; the defendant\u2019s evidence, unless favorable to the plaintiff, is not considered, except when not in conflict with plaintiff\u2019s evidence, it may be used to explain or make clear that which has been offered by the plaintiff. Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543; Whitley v. Jones, ante, 332, 78 S.E. 2d 147.\nThe plaintiff\u2019s evidence, taken as true, establishes fire, smoke and an \u25a0explosion causing damage to the automobile. The defendant\u2019s evidence ' tended to show that no fire or explosion occurred, and that the damage to 1 the car resulted from mechanical breakdown or failure.\nTbe defendant contends tbat to avoid a nonsuit tbe plaintiff must offer evidence tbat bis loss comes within tbe provisions of tbe insurance policy and is not excluded by any of the exceptions in the policy. Tbe defendant alleges in its answer as an affirmative defense tbat plaintiff\u2019s loss was caused by wear and tear or mechanical or electrical breakdown or failure, and is excluded under tbe provisions of tbe insurance policy.\nIt is generally held tbat tbe burden is on tbe insurer to show tbat damages claimed fall within an exception of loss by explosion. 29 Am. Jur., Insurance, p. 1086; German American Ins. Co. v. Hyman, 42 Colo. 156, 94 P. 27, 16 L.R.A. (N.S.) 77.\nIn MacClure v. Casualty Co., 229 N.C. 305, 49 S.E. 2d 742, tbe lower court nonsuited tbe plaintiff based upon an affirmative defense set up by tbe defendant. In reversing tbe lower court, we said \u201ctbe general rule is tbat the party who seeks to avoid liability by interposing an affirmative plea assumes tbe burden of proving his allegation by competent evidence before tbe jury\u201d (citing authorities). To tbe same effect Williams v. Ins. Co., 212 N.C. 516, 193 S.E. 728, and Wilson v. Casualty Co., 210 N.C. 585, 188 S.E. 102. See also Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16.\nTbe defendant relies upon General Exchange Ins. Corp. v. Bolles (Court of Civil Appeals of Texas), 143 S.W. 2d 635, and other Texas cases. Whatever may be tbe law in Texas, our cases bold otherwise. It also relies on Trust Co. v. Casualty Co., 231 N.C. 510, 57 S.E. 2d 809. On tbe facts tbat case is not in point.\nTbe defendant further contends on bis motion for nonsuit \u201cstanding-alone, the plaintiff\u2019s evidence creates a mystery. No cause for the light,, smoke and loud noise is given or can be inferred from plaintiff\u2019s testimony. Tbe evidence of tbe defendant explains and clarifies tbe evidence of tbe plaintiff to this effect.\u201d Tbe insurance policy insures tbe plaintiff against direct and accidental loss to bis automobile caused by fire or explosion. In making this contention tbe defendant does not heed tbe definition of tbe word \u201caccidental.\u201d In Kirkley v. Ins. Co., 232 N.C. 292, 59 S.E. 2d 629, there was an insurance policy containing tbe exact words-of tbe policy in this case as to comprehensive loss or damage except by collision or upset, as set forth in \u201c1 Coverage A.\u201d In tbat case this Court said \u201caccidental\u201d is defined in Black\u2019s Law Dictionary, 3rd, Ed., p. 23, as \u201can unforeseen event, occurring without tbe will or design of tbe person whose mere act caused it; an unexpected, unusual, or undesigned occurrence; tbe effect of an unknown cause, or, tbe cause being known, an unprecedented consequence of it; a casualty.\u201d\nThe trial court would not have been justified in nonsuiting the plaintiff upon tbe evidence of the defendant who has made an affirmative-defense with respect to which tbe burden of proof rests upon him. Tbe court was correct in submitting the case to the jury, and assignments of errors Nos. 4 and 5 are without merit.\nThe only other assignments of errors discussed in defendant\u2019s brief are as to the court\u2019s charge. Assignments of errors Nos. 13 and 15 are to the court\u2019s placing the burden of proof of the second issue reading \u201cIf so, was said fire or explosion a result of wear and tear or mechanical or electrical breakdown or failure, as alleged in the defendant\u2019s further answer and defense?\u201d on the defendant. For the reasons stated above those assignments of errors are not tenable.\nThe defendant\u2019s assignment of error No. 18 is to this part of the charge \u201cMr. and Mrs. Polansky have testified in behalf of the plaintiff; Brown Motor Company, the insurer\u2019s adjuster and one of the employees of Brown Motor Company, have testified on behalf of the defendant. These witnesses, the court charges you, are interested in the outcome of your verdict, and because of the interest that they have in the outcome of your verdict the court charges you to scrutinize their testimony and that of each of them. The law says that the court shall do so.\u201d The defendant had three witnesses: C. Fred Brown, Jennings G. Featherstone and Merlin Adcock. C. Fred Brown sold this car to plaintiff in 1947. He has sold Packard cars for 20 years. Featherstone, a mechanic, works for the Brown Motor Company. Adcock was an insurance adjuster. Conceding, but not deciding, that Adcock was interested in the outcome of the verdict, the record is bare of any evidence that Brown Motor Company, or Brown or Featherstone was related to the plaintiff or in any legal respect interested. The statement that Brown and Featherstone were interested in the verdict likely proved hurtful to the defendant\u2019s defense, though not so intended by the able and experienced trial judge. It is one of the casualties of the circuit which happen at times to all trial judges.\nUnder our decision in S. v. Dooley, 232 N.C. 311, 59 S.E. 2d 808, and under the facts, we think that this assignment of error is good, and there should be another hearing. It is so ordered.\nNew trial.", "type": "majority", "author": "Parker, J." } ], "attorneys": [ "UzzeTl & DuMont for plaintiff, appellee.", "Gudger, Elmore & Martin for defendant, appellant." ], "corrections": "", "head_matter": "MAXWELL POLANSKY v. MILLERS\u2019 MUTUAL FIRE INSURANCE ASSOCIATION OF ILLINOIS\n(Filed 21 October, 1953.)\n1. Trial \u00a7 22a\u2014\nUpon motion to nonsuit, plaintiff\u2019s evidence is to be taken as true, and plaintiff given every reasonable inference in Ms favor therefrom.'\n2. Trial \u00a7 22b\u2014\nUpon motion to nonsuit, defendant\u2019s evidence is not to be considered unless favorable to plaintiff, except when not in conflict with plaintiff\u2019s evidence, it may be used to explain or make clear that which has been offered by plaintiff.\n3. Insurance \u00a7 50\u2014\nThe policy in suit covered direct and accidental damage to insured\u2019s automobile caused by explosion, with later provision excluding liability for damage caused by mechanical or electrical breakdown or failure unless the result of other loss covered by the policy. Held,: The burden of proof was upon insurer to show that the damages claimed fell within the exclusion and an instruction to this effect is not error.\n4. Insurance \u00a7 45 % \u2014 Evidence held for jury on question of whether damage to car resulted from accidental explosion within coverage of policy.\nThe policy in suit covered direct and accidental damage to insured\u2019s car caused by explosion, with an exclusion of liability if the damage were due to mechanical or electrical breakdown or failure. Plaintiff\u2019s evidence was to the effect that after the car had been serviced with gas and oil, he stepped on the starter and there was an explosion with smoke and fire, and that thereafter a hole was found in the motor near one of the cylinders. Insurer offered evidence to the effect that the hole was caused by the connecting rod of the cylinder breaking loose and being driven through the block by the other cylinders. Held: The evidence was properly submitted to the jury upon the question of whether the damage was the \u201caccidental\u201d result of an \u201cexplosion.\u201d\n5. Insurance \u00a7 50: Trial \u00a7 Slg\u2014\nIn this action to recover under a policy of insurance for damage to a car accidentally resulting from explosion, the court\u2019s instruction to the effect that the dealer who had sold the car to plaintiff insured and the dealer\u2019s mechanic who had worked on the car, were interested witnesses and that their testimony should be scrutinized by the jury, is held for prejudicial error, there being no evidence in the record that the witnesses were related to plaintiff or were in any legal respect interested.\nAppeal by tbe defendant from Sinle, J., July Civil Term, 1953. Buncombe.\nThis is a civil action wherein plaintiff seeks to recover for damage to his automobile allegedly caused by fire or explosion under a contract of insurance issued by the defendant.\nOn 17 November 1949, the plaintiff, a citizen and resident of this State, was the owner of a 1947 Model Packard Sedan. The defendant, in consideration of the sum of $122.00, paid to.it as a premium by the plaintiff, issued to the plaintiff on 5 May 1949 its policy of insurance No. 9 A-91126, by which it duly insured plaintiff among other things, against loss of or damage to his Packard automobile as follows :\n\u201cI. Coveeage A \u2014 Comprehensive loss of or Damage to Automobile, Except by Collision or Upset. To pay for any direct and accidental loss of or damage to the automobile, . . . except loss caused by . . . fire . . . explosion . . . shall not be deemed loss caused by collision or upset.\u201d\n\u201cCoverage C \u2014 Eire, Lightning and Transportation. To pay for direct and accidental loss of or damage to the automobile . . . caused (a) by fire or lightning . . .\u201d\n\u201cCoverage E \u2014 \u2022Windstorm, Earthquake, Explosion, Hail or Water. To pay for direct and accidental loss of or damage to the automobile . . . caused by . . . explosion . . .\u201d\n\u201cCoverage F \u2014 Combined Additional Coverage. To pay for direct and accidental loss of or damage to the automobile . . . caused by . . . explosion . . .\u201d\nThis insurance policy was in full force and effect at the time of the alleged fire and explosion.\nThe defendant alleges and contends that if the plaintiff sustained any damage to his automobile as a result of fire or explosion, which is denied, then said damage resulted from wear and tear or mechanical or electrical breakdown or failure, and is excluded under the following provision of the insurance policy, reading as follows:\n\u201cExclusions\n\u201cThis policy does not apply: (d) under any of the coverages, to any damage to the automobile which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, unless such damage is the result of other loss covered by this policy.\u201d\nOn 17 November 1949, a very cold day, the plaintiff drove his car to a filling station in Asheville, and had gas put in his car. The attendant checked the oil, and put a quart of oil in the engine. After the car was serviced, plaintiff stepped on the starter two or three times, and saw fire coming from under the hood. Yery quickly there was an explosion and fire. The explosion caused a terrific noise. It seemed to be burning underneath the hood \u2014 there was a red glow. After the explosion there was oil all over the driveway under the car \u2014 2 or 3 quarts. Plaintiff noticed some of the wires which seemed to be burned or scorched. The following morning the plaintiff looked at the engine of his car. There was a hole in the engine by cylinder #2 on the left side.\n0. 0. Hudgins owned the filling station where Hugh M. Carson worked.' He checked the oil and added a quart. After he lowered the hood plaintiff stepped on the starter; a terrific explosion occurred and fire came from underneath, fire and smoke. I stepped inside the station to get the fire extinguisher. When I returned nothing was burning. Nothing had been done as far as I know to put any fire out. 2 or 3 quarts of oil were underneath the car on the pavement. The oil was not burning. When he checked the oil it was about one quart low.\nHugh M. Carson put the gas in the car. At the time of the explosion he was cleaning the rear glass of the car. Immediately after the explosion he saw light underneath the car, and noticed quite a bit of smoke. The glare was like you flash a light on and cut it off quickly. The next morning he looked at the motor, and saw a hole in the motor between the place where the oil is put in and the #2 cylinder. He testified on cross-examination the spark ignites the gas, there is an explosion which drives the motor. I did not see any fire. \u201cThere was a noise and a flash, and that was all there was to it.\u201d\nThe plaintiff introduced the insurance policy in evidence. The defendant denied liability.\nThe plaintiff testified in rebuttal that on 15 November 1949, he took his automobile to the Packard Company in Asheville to have the timing checked. It \u201cdischarged it (the automobile) as nothing wrong with it.\u201d\nThis is a summation of the defendant\u2019s evidence. 0. Fred Brown, who was held by the court to be an expert in the field of automobile motors, sold this car to plaintiff in 1947. According to the repair bill, it had been driven 15,897 miles. A Packard Motor will last varying times \u2014 some have been operated 315,000 miles; however, there would be breakdown of the engines and replacements. He saw this car 18 November 1949, and saw a hole in the cylinder wall. He recalls no wiring being burned. Plaintiff\u2019s ear had 8 cylinders. It operated by gas going through the carburetor, being discharged to the chamber where the cylinders operate and as the gas is ignited by the spark it forces the pistons down, turns the crankshaft directly connected with the universal and driveshafts, and into the rear axle of the ear, which causes the ear to move. Cylinder oil in the engine lubricates tbe bearings, and the working parts of the engine. #2 cylinder has a connecting rod coming from the crankshaft which is attached to the piston, which moves up and down. The connecting rod had broken, coming through the cylinder wall, which caused the hole in the wall or motor block. The connecting rod was disconnected from the bearing, which, in his opinion, caused the hole. There are many reasons why a connecting rod could get loose.\nJennings Gr. Featherstone, held by the court to be an expert witness on Packard Motors, gave substantially the same testimony as Brown, with these additions. In his opinion, the hole in the block of the motor was caused from oil not getting to the journal, and the bearing became heated and jerked loose, and the other 7 cylinders drove the broken connecting rod through the block. The wiring of the motor was all right. He saw no evidence of burning. He saw this car about a week before 18 November, and the car was not in good running condition.\nAnother witness for the defendant saw the \u201cmangled\u201d rod, but saw no evidence of fire.\nUpon issues submitted the jury found that the automobile of plaintiff was damaged by fire or explosion as alleged; that the fire or explosion was not a result of wear and tear, or mechanical or electrical breakdown or failure as alleged by the defendant; and awarded damages of $400.00 plus interest.\nFrom judgment signed in accord with the verdict, the defendant appeals.\nUzzeTl & DuMont for plaintiff, appellee.\nGudger, Elmore & Martin for defendant, appellant." }, "file_name": "0427-01", "first_page_order": 477, "last_page_order": 482 }