Opinion
(September Term, 1895.)
Trial — Evidence — Admissions by Pleadings.
1. It is not error to exclude evidence as to a fact admitted in the pleadings; hence:
2. Where, in an action by plaintiffs (husband and wife) to recover on a fire policy, it was alleged and admitted by the answer that the wife owned the property insured and that the husband was the assignee of the policy by defendant's consent, and on the trial the only issues were, "Did the plaintiffs conspire to burn the property"? and, "Did the husband wilfully burn it"? it was not error to exclude, as evidence offered by defendant, the assignment on the policy, it having been admitted by the pleadings.
ACTION tried before Robinson, J., and a jury, at December Term, 1895, of Buncombe.
There was judgment for the plaintiffs, and defendant appealed. The facts are stated in the opinion of Chief Justice Faircloth. (For former appeal, see 116 N.C. 821).
J.H. Merrimon, C.M. Stedman and Moore Moore for (532) plaintiffs.
Burwell, Walker Cansler and A. M. Fry for defendant.
At the last term ( 116 N.C. 821) the judgment in this case was affirmed in all respects, except that a new trial was granted only as to the 8th and 9th issues, to-wit: "Did plaintiffs agree, conspire and confederate together to burn the hotel and furniture?" "Did W.A. Blackburn wilfully burn or cause to be burned the hotel and furniture described in the complaint?"
On the trial of these issues, from which this appeal comes, the defendant conceded that the burden of proving the affirmative of the issues was upon it, and offered in evidence the assignment on the policies, without stating for what purpose. The court excluded the evidence, and the defendant offered no other evidence. The court directed the jury, as the defendant had introduced no evidence, to answer each issue "No," which they did.
In this Court the defendant excepts because the evidence offered was ruled out, insisting that that would constitute a basis of an argument as to the motions of the plaintiffs bearing on the 8th and 9th issues.
The fact appearing from the assignment, to-wit, that W.A. Blackburn was the assignee of the policies (by consent of the defendant) and that C. A. Blackburn was the owner of the property insured, was distinctly alleged and admitted in the pleadings, and was relied upon in the former trial as a main ground of defense, and was so argued in this Court. There was then no need to prove a fact agreed upon or admitted in the record, and the rejection of the evidence offered for that purpose was not error. No reason appears why a judgment non obstante veredicto should have been rendered in favor of the defendant, as urged by it. This Court could consider no (533) argument except on questions arising out of the last trial. All other matters were res judicata. Gordon v. Collett, 107 N.C. 362.
Affirmed.