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Cox's case is cited with approval by Chief Justice Furches, speaking for a unanimous court. Further on, the opinion of the court says: "If, however, tested by the rules laid down by this court, it (the testimony) is of that character which the law denominates evidence, and not merely speculative or conjectural, which is declared to be a mere scintilla, it was the duty of the judge to submit it to the jury and their peculiar and sole province to pass upon it." With great respect for the learned judge that wrote the opinion I am compelled to say that this sentence conveys no definite meaning to my mind. The word "scintilla" has a fixed and definite meaning, both in law and in English. Webster says that it is "a spark; an iota; tittle." Black says that scintilla of evidence is "the doctrine that where there is any evidence, however slight, tending to support a material issue, the case must go to the jury, since they are the exclusive judges of the weight of the evidence." The italics are those of the learned author. This definition is supported by the uniform current of authorities in this State, unless changed by the opinion in the case at bar. Does the court mean to say that it intends changing the meaning of the rule by changing the definition of a word? Surely not; but why the constant reiteration of the phrase? My own views will be frankly stated. I adhere to the principle as stated in Cox v. Railroad, 123 N. C., 604, as the settled rule in this court. If the court intends to decide, directly or indirectly, in terms or by judicial intimation, that where there is any evidence, more than a scintilla, tending to prove a material issue, the court can withdraw the case from the jury and direct a non-suit on the ground that, in the opinion of the court, the evidence is not sufficient to justify a verdict; then I most respectfully but earnestly dissent from a proposition so new and dangerous, which in my opinion is without just foundation in authority, and in violation of the Constitution and laws of the State. Large numbers of cases


might be cited in support of my views. Those in this State are too well known to need citation, and I will cite but one case from the Supreme Court of the United States, where the rule is less strict than in this State. In Railroad v. Egeland, 163 U. S., 93, 98, the court holds that before the question can be withdrawn from the jury, the inference from the fact must be "so plain as to be a legal conclusion."

The former court affirming the court below held that there was evidence to go to the jury. The present court thinks otherwise, and bases its opinion upon the "uncertainty which surrounds the testimony." This very uncertainty seems to me a conclusive reason why it should have been left to the jury. In Printing Co. v. Raleigh, 126 N. C., 516, Chief Justice Faircloth, speaking for the court, says: "The defendant's motion to dismiss the action was equivalent to a demurrer to the evidence, and the plaintiff's evidence will be taken as true, and taken in the most favorable light for him. An appellate court reviewing a judgment of non-suit will assume every fact proved, necessary to be proved, when the evidence tends to prove it." See also Coley v. Railroad, 129 N. C., 407; 57 L. R. A., 817, and cases therein cited. In Railroad v. Lowell, 151 U. S., 209, 217, the court says: "In determining whether the plaintiff was so guilty of contributory negligence as to entitle the defendant to a verdict, we are bound to put upon the testimony the construction most favorable to him." Can there be any doubt that under such a rule the case should have gone to the jury? The opinion of the court also seems to lay great stress upon the absence of "contractual words." Such words are not required to make a contract binding and are rarely used in the ordinary. affairs of life. If a person says to a merchant, "send me up a bag of flour" or "give me a pound of sugar," can there be any doubt that he is bound for the price? If a corporation through its general manager says to a professional salvor,


"We want you to go down there and get the ship off," why is is not equally liable? The evidence referred to in the former opinion of the court relating to the ship wearing the Clyde colors, flying the Clyde flag, and using furniture marked C. S. C., was cited as tending to show that while the defendant may not have had the legal title to the ship, it may have had in it at least what is equivalent to an insurable interest. For some reason in writing the former opinion of the court, I omitted to cite authorities in support of the proposition that the plea of ultra vires is a defense in the nature of confession and avoidance, with the burden of allegation and proof resting upon the party seeking its protection. 5 Thomp. Corp., Sec. 5967; 1 Clark & M. Corp., Sec. 174; 5 Pl. & Pr., 96; Elliott Pr. Corp., 57; 2 Spelling, Sec. 780, 848, 867. I deeply regret being compelled to dissent so often and at such. length, as I am aware that the time thus spent might well be given to the preparation of the opinions of the court, but when great principles are at stake that have exercised a dominating sway over my judicial life, I feel compelled to give them what support I can, trusting to a generous profession for the appreciation of my motives and to time for the vindication of my convictions.

CLARK, C. J., concurring in dissent. I concur in what is so clearly and forcibly said by Mr. Justice Douglas, and I regret that I can not add emphasis to the views stated by him and by Judge Bynum in Wittkowsky v. Wasson. "Juries are the sole and exclusive judges of the facts," and judges have no right to intrude into that province. The maintenance of this principle of the law inviolate is guaranteed by the Constitution, and its preservation is as necessary now as at any time in the history of our race for the protection of the liberty and the property of the humblest citizen. The Act of 1796 (now Code, 413) forbidding the trial judges to intimate any opinion upon the weight of the evidence is


worse than useless if the appellate court can weigh the evidence. The trial judge who at least sees the bearing and demeanor of the witnesses upon the stand, and knows the surrounding circumstances (advantages which are denied to us) can far better judge of the weight and sufficiency of the evidence than an appellate court. Why deny him, so rigorously an expression of opinion which the jury is not compelled to accept, if the appellate court can weigh the evidence and hold it insufficient to justify the conclusion at which the jury have arrived, and in a case, too, in which the trial judge has not thought he ought to exercise his undoubted prerogative to set the verdict aside, as he would have done, if he deemed it contrary to justice? If the trial judge sets the verdict aside, the very same evidence may be submitted to another jury for its consideration; whereas if the appellate court adjudges the evidence insufficient, the appellee not only loses his verdict, but all opportunity to try his cause by a jury at all, unless he can get additional evidence.

Because there is no power anywhere to review the action of an appellate court in holding that there was not sufficient evidence to justify a verdict which has been rendered, is an additional and the strongest reason why an appellate court should never so hold. So important a matter is this that the Court of Appeals is expressly forbidden by the Constitution of New York to set aside a verdict even on the ground that there is no evidence when the court below is unanimous that there was evidence, and our Superior Court must be unanimous, there being only one judge. The time-honored limitation in this State, within which an appellate court can set aside a verdict, is when "there is no evidence beyond a scintilla."




(Filed June 11, 1893.)

1. CONTRACTS-Parol Agreement-Fraud-Insurance.

The rule that parol agreements are merged in a written contract is not applicable where a written contract was by fraud or mistake executed differently from the terms of agreement.

2. WITNESSES-Evidence-Competency-Insurance-The Code, Sec. 590. In an action against an insurance company to recover premiums paid on a life insurance policy, the assured may testify as to a conversation between himself and the deceased agent of the defendant company.

3. INSURANCE-Contracts-Parol Agreement-Estoppel.

The receipt of an insurance policy, under the circumstances in this case, without reading it does not bind the assured so as to prevent him from proving a parol agreement between himself and the agent of the company relative to the policy.

4. INSURANCE-Policy-Principal and Agent-Waiver-Contracts.

A general agent of an insurance company may waive any stipulation in a policy, notwithstanding a clause in the policy forbidding it.

5. EXCEPTIONS AND OBJECTIONS—Appeal-Instructions—The Code, Sec. 550.

Exceptions to a charge must be stated separately, in articles numbered, and no exception should contain more than one proposition.

6. INSURANCE-Premiums.

Where an insurance policy is wrongfully cancelled, the amount of the recovery by the assured is the premiums paid with interest thereon from the date of payments.

MONTGOMERY, J., dissenting.

ACTION by W. R. Gwaltney and wife against the Provident Savings Life Assurance Society, heard by Judge B. F. Long and a jury, at February Term, 1903, of the Superior Court of CATAWBA County. From a judgment for the plaintiffs, the defendant appealed.

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