Gibson v. Central Manufacturers' Mutual Insurance
62 S.E.2d 320
N.C.
1950
Check Treatment
*715 "WinboRNe, J.

Defendant’s assignments of error based on exceptions to denial of its-motion, aptly made, fоr judgment as of nonsuit are not well taken. Defendant, baying (1) admitted tbe issuance of tbe policy оf insurance on wbicb plaintiff bases bis action, and (2) set up in avoidance tbe defense tbat the issuance of tbe policy was procured by tbe false representations of plaintiff in tbе respects averred, bas tbe burden of proof on tbe issues thereby raised. Tbe burden of proof is on tbe party holding tbe affirmative. Wilson v. Casualty Co., 210 N.C. 585, 188 S.E. 102; In re Atkinson, 225 N.C. 526, 35 S.E. 2d 638. And judgment of nonsuit will not be granted in favor of one on wbom rests thе burden of proof. Moreover, in the record on tbe appeal, there is no request fоr a directed verdict.

But tbe first issue submitted to tbe jury in the trial court is, in tbe use of tbe term “and/or,” ambiguous and uncertain, and, hence, tbe verdict thereon is insufficient to support tbe judgment rendered.

While defendant’s exception to the issues is general, and does not point to tbe use of tbe term “and/or” so used, its exception No. 21 ‍​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‍to a portion of tbe charge does bring it into focus. Tbe following is tbe portion of tbe charge to wbicb this exception No. 21 relates:

“If tbe defendant bas fаiled to satisfy you tbat tbe plaintiff falsely misrepresented to tbe defendant, in applying for tbe insurаnce policy, tbat such automobile was new and/or tbat be paid $2794.00 for the car, it would be your duty to answer tbe issue No.”

Moreover, tbe exception to tbe judgment rendered raises tbe quеstion .as to whether error in law appears upon tbe face of tbe record, Culbreth v. Britt, 231 N.C. 76, 56 S.E. 2d 15, and cases there cited. See also Greensboro v. Black, ante, 154; Hoover v. Crotts, ante, 617. Indeеd, tbe .appeal itself is considered an exception to tbe judgment and any other mattеrs appearing upon tbe face of tbe record. Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22, and numerous other cases. And tbe record, in tbe sense here used, refers to tbe essential ‍​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‍parts of tbe record, such as tbe рleadings, verdict and judgment. See Thornton v. Brady, 100 N.C. 38, 5 S.E. 910, and citations •of it as shown in Shepard’s North Carolina Citations. And wherе error is manifest on tbe face of tbe record, even though it be not tbe subject of an exception, it is tbe duty of tbe Court to correct it, and it may do so of its own motion, tbat is ex mero moiu. G.S. 7-11, formerly C.S. 1412, Rev. 1542, Codе 957, and R.C. Ch. 33, sec. 6. Thornton v. Brady, supra. Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; S. v. Ashford, 120 N.C. 588, 26 S.E. 915; Appomattox Co. v. Buffaloe, 121 N.C. 37, 27 S.E. 999; S. v. Truesdale, 125 N.C. 696, 34 S.E. 646; Griffith v. Richmond, 126 N.C. 377, 35 S.E. 620; Wilson v. Lumber Co., 131 N.C. 163, 42 S.E. 565; Ullery v. Guthrie, 148 N.C. 417, 62 S.E. 552; Moreland v. Wamb *716 oldt, 208 N.C. 35, 179 S.E. 9; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; Smith v. Smith, 223 N.C. 433, 27 S.E. 2d 137.

A judgment, in its ordinary acceptation, is the conclusion of tbe law upon facts аdmitted or in some way established, and, without the essential fact, the Court is not in a position to make final decision on the rights of the parties. Sedbury v. Express Co., 164 N.C. 363, 79 S.E. 288; Durham v. Hamilton, 181 N.C. 232, 106 S.E. 825, 30 Am. Jur. 821, Judgments, sec. 2. A judgment must be definite. 49 C.J.S. 51. And while a verdict is not a judgment, it is thе basis on which a judgment may ‍​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‍or may not be entered. 49 C.J.S. 28, Judgments 4. Hence a verdict should be certain аnd import a definite meaning free from ambiguity. Wood v. Jones, 198 N.C. 356, 151 S.E. 732. See also In re Will of Roediger, supra; Edge v. Feldspar Corp., 212 N.C. 246, 193 S.E. 2; Cody v. England, 216 N.C. 604, 5 S.E. 2d 833.

In the Edge case, supra, the issue as framed was whether a certain provision was omitted from the deed in suit “by material mistake or by the fraud of the grantee.” The jury answered “yes.” And this Cоurt held that the verdict is uncertain or ambiguous; that it is in the alternative; and that its inconclusiveness neсessitated another trial. Compare S. v. Williams, 210 N.C. 159, 185 S.E. 661. Moreover, the use of the term “and/or” has not esсaped the attention of this Court. Freeman v. Charlotte, 206 N.C. 913, 174 S.E. 453; S. v. Ingle, 214 N.C. 276, 199 S.E. 10; S. v. Mitchell, 217 N.C. 244, 7 S.E. 2d 567.

In the Freeman case, supra, on appeal from an order restraining a speciаl election, the Court, in affirming the order, had this to say:

“It is observed that the approval of the Stаte School Commission, as provided by Section 17, Chapter 562, Public Laws of 1933, nowhere-appеars of record; and further that the ‍​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‍use of words ‘and/or’ in said section adds nothing to its clarity if it does nоt create an ambiguity as to who shall request the tax levying authorities to call the election.”

S. v. Ingle, supra, is an appeal by the State from a special verdict, finding defendant “not guilty” of the chargе of “carrying on the Plumbing and/or Heating Contracting business, without having obtained a license to cany on the business of Plumbing and Heating Contracting in this State.” In finding no error, this Court said: “While there was no motion to quash the warrant, it may not be amiss to observe that it charges the defendant with ‘carrying on the Plumbing and/or Heаting Contracting business’ — (citing cases). The use of ‘and/or’ in the warrant adds nothing to its clarity.” Citing Freeman v. Charlotte, supra.

And in S. v. Mitchell, supra, reversing a spеcial verdict finding defendant guilty “of practicing or offering to practice, entering into or carrying-on the plumbing and/or heating contracting business” the Court con- *717 eluded with the piercing question, “Of what ‍​‌‌​‌​‌‌​​​​‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‍crime dоes he stand convicted ?”, citing S. v. Ingle, supra.

Thus the Court has inferentially condemned the use of the term “and/or” in statutes, and in verdicts in judicial proceedings.

Moreover, the annotators of reported сases, and the text writers, indicate that much has been written in condemnation of the term “and/or.” It is declared, in effect, that the courts generally hold that the term “and/or” has no place in judicial proceedings, — pleadings, verdict or judgment. See Annotations 118 A.L.E. 1367, and 154 A.L.B. 866, on subject “And/or”; also, 3 C.J.S. 1069, аnd Words and Phrases, Perm. Ed. 3, p. 450.

In fine, issues should be couched in words of clear and certain meaning.

For error indicated, let there be a

New trial.

JohnsoN, J., took no part in the consideration or decision of this case.