{
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  "name": "LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO; and PATRICIA ANN HUNNICUTT, by her Next Friend, LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO",
  "name_abbreviation": "Hunnicutt v. Shelby Mutual Insurance",
  "decision_date": "1961-10-18",
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    "parties": [
      "LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO. and PATRICIA ANN HUNNICUTT, by her Next Friend, LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO."
    ],
    "opinions": [
      {
        "text": "Bobbitt, J.\nBefore evidence was offered, defendant demurred ore tenus to each complaint on the ground the facts alleged did not state a cause of action. Specifically, they pointed out plaintiffs\u2019 allegation that the 1947 Chevrolet, operated by Huskey on the occasion of the collision, \u201cwas owned by either John Robert Huskey, his mother or some other member of his household.\u201d Thereupon, this entry was made: \u201cCOURT: Let the record show I overruled the demurrer ore tenus at this time.\u201d Defendant excepted. No other entry with reference to defendant\u2019s said demurrers ore tenus appears in the record. Nor does it appear that plaintiffs amended their complaints or requested leave to do so.\nIn 41 Am. Jur., Pleading \u00a7 221, cited in Lindley v. Yeatman, 242 N.C. 145, 151, 87 S.E. 2d 5, and in Lewis v. Lee, 246 N.C. 68, 72, 97 S.E. 2d 469, it is stated: \u201cWhere, however, the complaint alleges in the alternative two statements of fact, one of which would be legally sufficient to constitute a cause of action and the other not, they neutralize each other, and demurrer will lie.\u201d\nIn Lindley v. Yeatman, supra, this Court, in opinion by Johnson, J., said: \u201cMoreover, where in stating a single cause of action the complaint alleges two repugnant statements of facts, the repugnant allegations destroy and neutralize each other, and where, with the repugnant allegations thus eliminated, the remaining averments are insufficient to state a cause of action, demurrer will lie.\u201d This excerpt is \u25a0quoted by Winborne, C.J., in Lewis v. Lee, supra. See also McIntosh, N. C. Practice and Procedure, \u00a7 353; 71 C.J.S., Pleading \u00a7\u00a7 41, 42 and 230(b).\nIf Pluskey owned the 1947 Chevrolet at the time of the collision, the policy did not cover his legal liability. However, if the 1947 Chevrolet was then owned by his mother or some member of his household (other than his spouse, if any), the policy did cover Huskey\u2019s legal liability provided his 1953 Ford, specifically described in the policy, was \u201cwithdrawn from normal use because of its breakdown, repair, servicing, loss or destruction,\u201d and he was using the 1947 Chevrolet temporarily as a substitute therefor.\nThe allegations of the complaints do not affirmatively disclose a defective cause of action, that is, that plaintiffs have no cause of action against defendant. If the demurrers ore tenus had been sustained, plaintiffs would have had the legal right to move under G.S. 1-131 for leave to amend their complaints in such manner as to remedy the defect in their factual allegations. Davis v. Rhodes, 231 N.C. 71, 56 S.E. 2d 43; Skipper v. Cheatham, 249 N.C. 706, 711, 107 S.E. 2d 625; Johnson v. Graye, 251 N.C. 448, 111 S.E. 2d 595.\nWe deem it unnecessary to determine whether, under the circumstances here considered, the court\u2019s failure to sustain defendant\u2019s demurrers ore tenus is sufficient ground for the award of a new trial. Having reached the conclusion that defendant is entitled to a new trial on other grounds, attention is called to the fact that plaintiffs may move under G.S. 1-163 for leave to amend their complaints.\nDefendant\u2019s assignment of error directed to the court\u2019s denial of its motions for judgments of involuntary nonsuit is without merit. Jackson v. Casualty Co., 212 N.C. 546, 193 S.E. 703, cited by defendant, is readily distinguishable. Suffice to say, the judgments obtained by plaintiffs in their prior actions against Huskey disclose that no issue was submitted or determination made as to the ownership of the 1947 Chevrolet.\nWhile plaintiffs\u2019 allegations as to the ownership of the 1947 Chevrolet were as stated above, plaintiffs offered evidence tending to show the 1947 Chevrolet, at the time of the collision, was owned by Mrs. Ellie Huskey, Huskey\u2019s mother. This evidence consists largely of the testimony of Huskey and of his mother. Their testimony, considered in the light most favorable to plaintiffs, tends to show the facts set out in the following numbered paragraphs:\n1. On February 2, 1959, Huskey worked for Redwood Furniture Company. On that date, and prior thereto, he lived with his mother.\n2. Huskey had owned a 1949 Ford. He bought it from his brother. When he \u201ccouldn\u2019t finish paying for\u201d it, he gave it to his mother and she \u201cpaid it off.\u201d\n3. In the summer of 1958, Huskey bought the 1947 Chevrolet from a used car dealer for $100.00. His name was \u201cput on the title,\u201d but he did not apply for \u201ca new title.\u201d The tags of the former owner were left on the car.\n4. A month or so after Huskey purchased the 1947 Chevrolet, he was arrested and fined for driving it without having procured liability insurance thereon. It was then taken to the Huskey home and parked. On that very day, Huskey and his mother traded cars.\n5. In their trade, Huskey\u2019s mother received the 1947 Chevrolet. He gave her \u201cthe switch keys, and the title, and the bill of sale on it,\u201d but did not then \u201chave the title transferred to her name.\u201d In exchange, he received the 1949 Ford he had previously owned and was to receive $50.00. In December, 1958, he traded the 1949 Ford \u201con this \u201953 Ford.\u201d He then applied for and obtained liability insurance on the \u201953 Ford. The policy is an assigned risk policy because Huskey was \u201cunder 25.\u201d\n6. From the time he \u201cwas caught on the Square for driving it without insurance.\u201d Huskey did not again drive the 1947 Chevrolet until February 2,1959, the day of the collision. Until then, his mother drove it \u201cwhat little bit it was used.\u201d\nThere are contradictions and discrepancies in the testimony of Huskey as indicated by these excerpts from his testimony on cross-examination: \u201cI am talking about the same automobile, the Chevrolet. I just did not have the money to buy liability insurance at that time so I parked my car. I liked the car and decided to keep it. Around the first of the year, I saw this \u201953 Ford I have described, and I decided I would like it in addition to my Chevrolet.\u201d Again: \u201cI kept both the Ford and Chevrolet at my house sitting out in the yard. It is right that I was just about the only driver of the Chevrolet and also the Ford. Occasionally my mother might drive the Chevrolet, and occasionally she might drive the Ford, but I did most of the driving in the family. Actually, I kept the Chevrolet more or less to fiddle with. I put a new motor in it and put a lot of work in it. I used the Chevrolet around our farm a lot to haul groceries, feed, etc.\u201d\nIn plaintiffs\u2019 prior actions, Mrs. Ellie Huskey was named as a co-defendant. Answering, Mrs. Ellie Huskey denied she owned the 1947 Chevrolet at the time of said collision and Huskey asserted his ownership thereof; and, in the Lawrence H. Hunnicutt (prior) case, Huskey alleged a cross action for damages to his 1947 Chevrolet. The records of said prior actions disclose that the issues submitted and the judgments rendered did not involve Mrs. Ellie Huskey. There was evidence that Huskey had testified in the trial of said prior actions, and had stated on other occasions, that he was the owner of the 1947 Chevrolet at the time of the collision.\nFurther discussion of the evidence relating to the ownership of the 1947 Chevrolet at the time of the collision is deemed unnecessary. Suffice to say, no document or memorandum relevant to the ownership of the 1947 Chevrolet was offered; and plaintiffs\u2019 cases depended largely upon the credibility of the testimony of Huskey and of his mother.\nThe credibility of their testimony was challenged by the evidence as to their pleadings in the prior actions, by evidence as to Huskey\u2019s testimony therein, by testimony as to Huskey\u2019s prior declarations, and by Huskey\u2019s testimony on cross-examination. Moreover, Huskey and his mother were interested witnesses. If verdicts and judgments were rendered in favor of plaintiffs herein, the payment thereof by defendant would extinguish Huskey\u2019s personal liability under the judgments rendered against him in said prior actions. Moreover, as long as the judgments against Huskey in the prior actions remain unpaid, Hus-key\u2019s ability to obtain operating privileges is seriously impaired. G.S. 20-279.13 et seq. The interest of Mrs. Huskey is on account of her relationship to and interest in her son.\nWe forego discussion of assignments of error directed to the court\u2019s instruction relating to the first issue. Suffice to say, the court instructed the jury at length with reference thereto. After doing so, the court gave this, and only this, instruction with reference to the second issue:\n\u201c (If you answer the first question NO, the Court instructs you that you would then answer the second question YES, as a matter of law, provided you find the facts to be as all the rest of the evidence tends to show. If you find the facts to be as all the rest of the evidence shows, and you answer the first question NO, then you would answer the second question YES.) On the other hand, if you answer the first question YES, and likewise find the facts to be as all of the rest of the evidence tends to show, then you would answer the second question NO.\u201d\nDefendant assigns as error, based on exception aptly noted, the two sentences enclosed by parentheses.\nDefendant did not tender issues or except to the issues submitted by the court. Even so, analysis of the issues submitted discloses the following: The first issue reads: \u201c1. Was John Robert Huskey the owner of the Chevrolet automobile referred to in the Complaint, on the 2nd day of February, 1959?\u201d Under an issue so phrased, the court properly placed the burden of proof on plaintiffs to establish that Huskey was not the owner. Hence, the answer, \u201cNo,\u201d was in plaintiffs\u2019 favor. The second issue reads: \u201cIf so, did John Robert Huskey have outstanding a policy of insurance covering the operation of the Chevrolet automobile, as alleged in the Complaint?\u201d (Our italics) The wording of the second issue was erroneous and confusing. The words, \u201cIf not,\u201d instead of the words, \u201cIf so,\u201d would have been appropriate. Indeed, an affirmative answer to the first issue would have defeated plaintiffs\u2019 right to recover; and if the jury answered the first issue, \u201cYes,\u201d it would not .reach the second issue.\nApart from the foregoing, defendant contends the-challenged portion of the peremptory instruction with reference to the second issue was error.\nIt is first noted that the first sentence in said challenged portion contains the clause, \u201cprovided you find the facts to be as all the rest of the evidence tends to show,\u201d while the second sentence contains the clause, \u201c (i) f you find the facts to be as all the rest of the evidence shows.\u201d Defendant contends this instruction indicated the court accepted as credible the testimony of the witnesses offered by plaintiffs, that no factual determination was to be .made by the jury in connection with the second issue and that the second issue was to be answered as a matter of law depending solely upon the jury\u2019s answer to the first issue.\nAssuming Huskey was not the owner of the 1947 Chevrolet, the burden of proof was on plaintiffs to establish by the greater weight of the evidence that Huskey was using the 1947 Chevrolet temporarily \u201cas a substitute for the described automobile (1953 Ford) when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.\u201d Ransom v. Casualty Co., 250 N.C. 60, 108 S.E. 2d 22.\nThe portion of Huskey\u2019s testimony most favorable to plaintiffs tends to show Huskey was accustomed to drive the 1953 Ford to and from his place of work; that, when he started home from work on the night of February 1, 1959, \u201cthe front end started making a noise\u201d; that upon checking the 1953 Ford that night he found the wheel bearings were bad; that he parked the 1953 Ford at his home until he had opportunity to make or have made the needed repairs; and that on February 2, 1959, he was driving the 1947 Chevrolet as a temporary substitute for the 1953 Ford. This testimony, if believed, was sufficient to bring the 1947 Chevrolet within the coverage of the policy. Even so, and apart from the evidence bearing upon Huskey\u2019s credibility, there was also in the evidence Huskey\u2019s testimony, elicited on cross-examination and quoted above, that he kept \u201cboth the Ford and Chevrolet\u201d at his house and was \u201cjust about the only driver of the Chevrolet and also the Ford.\u201d From this evidence, the jury may have found that Huskey was accustomed to drive the 1947 Chevrolet as well as the 1953 Ford; and, if so, the jury could have rejected entirely Huskey\u2019s testimony as to why he was driving the 1947 Chevrolet on February 2, 1959.\n\u2022 Whether plaintiffs had satisfied the jury from the evidence and by its greater weight that Huskey on February 2, 1959, was driving the 1947 Chevrolet temporarily \u201cas a substitute for the described automobile (1953 Ford) when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction,\u201d was the only factual determination to be made by the jury in connection with the second issue. No instruction was given as to what facts the jury must find in order to answer the second issue, \u201cYes.\" Indeed, we find nothing in the charge to indicate the jury was instructed that plaintiffs were required to establish by the greater weight of the evidence the factual element involved in the second issue. The jury was instructed to answer the second issue, \u201cYes,\u201d provided they found the facts to be \u201cas all the rest of the evidence tends to show.\u201d Surely, if the jury believed the evidence elicited from Huskey on cross-examination, quoted above, and the evidence as to prior conflicting statements made by plaintiffs\u2019 principal witnesses, the jury would not be required, as a matter of law, to answer the second issue, \u201cYes.\u201d Moreover, no instruction whatever was given as to how the jury should answer the second issue if it did not \u201cfind the facts to be as all the rest of the evidence tends to show.\"\n\u201c. . . when a peremptory instruction is permissible, conditioned upon the jury finding the facts to be as all the testimony tends to show the court must leave it to the jury to determine the credibility of the testimony.\u201d Shelby v. Lackey, 236 N.C. 369, 72 S.E. 2d 757; Reynolds v. Earley, 241 N.C. 521, 526-527, 85 S.E. 2d 904. This rule applies with full vigor when, as here, the credibility of the testimony of the witnesses offered by the party having the burden of proof is seriously challenged. Clearly, the jury should have been instructed that, if they failed to find the facts to be as plaintiffs contended, it should answer the second issue, \u201cNo.\u201d The instruction given would seem to exclude this possibility. Shelby v. Lackey, supra; Reynolds v. Earley, supra.\nUnder the circumstances, and for the reasons stated, it is our opinion, and we so hold, that the challenged peremptory instruction was inadequate and erroneous, and that defendant is entitled to a new trial.\nNew trial.",
        "type": "majority",
        "author": "Bobbitt, J."
      }
    ],
    "attorneys": [
      "Fisher, Fowler & Sigmon and Willson & Riddle for plaintiffs, ap-pellees.",
      "Van Winkle, Walton, Buck & Wall, Herbert L. Hyde and Roy W. Davis, Jr., for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO. and PATRICIA ANN HUNNICUTT, by her Next Friend, LAWRENCE H. HUNNICUTT v. SHELBY MUTUAL INSURANCE COMPANY, of SHELBY, OHIO.\n(Filed 18 October, 1961.)\n1. Pleadings \u00a7\u00a7 2, 19\u2014\nWhere the complaint contains statements in the alternative, one of which would support the cause of action and .the other negate it, the conflicting allegations neutralize each other, but such defect would constitute a defective statement of a good cause of action, and therefore if a demurrer ore tcnus is sustained, plaintiffs would have legal right to move for leave to amend. G.S. 1-131.\n2. Appeal and Error \u00a7 1\u2014\nWhere a new trial is awarded on one ground, the Supreme Court need not decide whether a new trial should also be awarded on another ground.\n3. Judgments \u00a7 3; Insurance \u00a7 65\u2014\nWhere the injured party obtains judgment against insured on the ground of insured\u2019s negligent operation of the automobile in question, without adjudication of insured\u2019s ownership of the vehicle, insurer is not estopped by such judgment in a subsequent action against it by the injured party from setting up the defense that insured was the owner of the vehicle and that such vehicle was not the one described in the policy, and therefore was not covered thereby.\n4. Insurance \u00a7\u00a7 54, 56\u2014\nIn a suit by the injured party against insurer to recover the amount of a judgment theretofore obtained against insured upon the ground that the vehicle causing the injury, although not described in the policy, was covered thereby under its provision extending liability to vehicles not owned by the insured but used by him temporarily as a substitute for the described vehicle when the described vehicle was withdrawn from use because of a breakdown, the burden is upon plaintiff to prove that the vehicle in question was not owned by insured and was used by him temporarily for the reason and purpose set forth in the policy.\n5. Same \u2014 Peremptory instruction to answer issue involving reason for insured\u2019s use of vehicle belonging to another, held prejudicial.\nThe liability of insurer for the amount of a judgment obtained against the insured by the injured third party was dependent upon whether the vehicle in question, although not described in the policy, was not owned by insured but was used by him temporarily as a substitute because of \u2022breakdown of insured\u2019s vehicle. Plaintiff relied largely on testimony of insured and his mother elicited on cross-examination, which testimony was conflicting and given by interested witnesses. Sold: It was prejudicial error for the court to instruct the jury that if they answered the issue of insured\u2019s ownership of the vehicle in the negative and found the facts to be as tbe other evidence tended to show, to answer the issue as to whether such vehicle was covered by the policy in the affirmative, the credibility of insured\u2019s testimony .that he was operating the car involved in the collision because the car described in. the jjolicy had broken down, being for the determination of the jury.\n6. Trial \u00a7 31\u2014\nA peremptory instruction to the jury to answer the issues as indicated if they found the facts as all of the evidence tends to show, is incomplete, the proper form being for the court to add that if the jury did not so find the facts, to answer the issue in the negative, since the court must leave it to the jury to determine the credibility of the evidence.\nAppeal by defendant from Campbell, J., Regular February Term, 1961, of BuNCOmbe.\nTwo civil actions, consolidated for trial, to recover on an automobile liability insurance policy issued by defendant to John Robert Huskey.\nThe policy was in force on February 2,1959, when a 1947 Chevrolet, operated by Huskey, collided with an automobile owned and operated by Lawrence H. Hunnicutt in which Patricia Ann Hunnicutt was a passenger. In prior actions, it was established that Huskey\u2019s negligence was the cause of the collision and of damages sustained by plaintiffs; and each plaintiff obtained a final judgment against Huskey. Executions issued thereon were returned unsatisfied and no part thereof has been paid. These actions are to recover from defendant the amount of Huskey\u2019s legal liability to plaintiffs as established by said judgments. A copy of the policy and of the judgment in the prior, action was attached to each complaint.\nThe automobile specifically described in the policy issued by defendant to Huskey is a 1958 Ford. It was not involved in said collision.\nPlaintiffs alleged the 1947 Chevrolet \u201cwas owned by either John Robert Huskey, his mother or some other member of his household.\u201d They alleged the policy covered Huskey\u2019s temporary use of the 1947 Chevrolet on the occasion of the collision.\nAnswering, defendant denied liability for Huskey\u2019s operation of the 1947 Chevrolet, alleging, inter alia, that the 1947 Chevrolet, at the time of the collision, was owned by Huskey.\nPlaintiffs seek to recover under this policy provision: \u201cIV ... (a) . . . except where stated to the contrary, the word \u2018automobile\u2019 means: . . . (3) TEMPORARY SUBSTITUTE AUTOMOBILE \u2014 under coverages A, B and division 1 of coverage C, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.\u201d\nIn each case, the court submitted and the jury answered these issues':\n\u201c1. Was John Robert Huskey the owner of the Chevrolet automobile referred to in the Complaint, on the 2nd day of February, 1959? ANSWER: No.\n\u201c2. If so, did John Robert Huskey have outstanding a policy of insurance covering the operation of the Chevrolet automobile, as alleged in the Complaint? ANSWER: Yes.\u201d\nIn each case, judgment was entered in favor of plaintiff for the amount of the judgment such plaintiff had obtained in the prior action against Huskey, together with interest from the date of such prior judgment, and costs. The amounts were within the limits defined in the policy.\nDefendant excepted and appealed.\nFisher, Fowler & Sigmon and Willson & Riddle for plaintiffs, ap-pellees.\nVan Winkle, Walton, Buck & Wall, Herbert L. Hyde and Roy W. Davis, Jr., for defendant, appellant."
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