#### ED. EMERY, et al., v. LITITZ MUTUAL INSURANCE CO.

(Filed 25 February, 1948.)

1. Insurance § 25<3—

Insured paid tbe premium on a policy of fire insurance on his barn at the rate for a “private stable,” and not the much higher rate for a “livery stable.” The policy provided that insurer should not be liable for loss if the hazard were increased- by any means within the control or knowledge of insured. Insured testified, “I work in the winter and rent horses in the summer,” that he had run a riding academy but closed that business when he moved to the premises in question, and had only four horses at the time of the fire, that he never rented horses to anybody and that the barn was private. The fire occurred in the winter. *Meld:*Plaintiff’s evidence, even though contradictory or equivocal, does not justify nonsuit on the theory that plaintiff’s evidence shows no liability to him on the policy in suit.

2. Trial § 22c—

Contradictions, discrepancies or equivocations in plaintiff’s testimony affect his credibility but do not justify nonsuit.

Appeal by defendant from *Nettles, J.,*at December Term, 1947, of BuNoombe.

Civil action to recover on a policy of insurance.

For about seven years tbe plaintiff operated a riding academy on Dorcb Street in tbe City of Asheville, where be kept 20 to 25 saddle horses for hire. On 28 August, 1946, be purchased a cabin and barn on Vivian Street from C. D. Hendrix, and immediately had the defendant insure the same against fire for a period of three years, with loss payable *533to tbe mortgagee, as interest may appear, subject to mortgage clause attached. Tbe cabin was insured for $1,000 and tbe barn for $1,500. Tbe tbree-year premium was $16.88 for occupancy of dwelling by owner and “private stable.” If tbe barn bad been classified as a livery stable, tbe rate on tbis alone would bave been $81.75 for tbe tbree-year period.

Tbe policy provides: “Conditions Suspending or Restricting Insurance. Unless otherwise provided in writing attached hereto tbis company shall not be liable for loss occurring (a) while tbe hazard is increased by any means within tbe control or knowledge of tbe insured.”

Tbe plaintiff took possession of tbe property on tbe day of purchase. In about two months thereafter, be sold most of bis horses, retained only five, which be moved to tbe barn, and all of bis saddle equipment be put in tbe cabin. From tbe cabin, be continued to rent these five horses for hire. They were in tbe barn on tbe night of 14 January, 1947, when it was destroyed by fire. One bad been sold. Four belonged to tbe plaintiff. Tbe barn was worth about $2,200.00.

Speaking of tbe kind of business be did at tbe Hendrix place, tbe plaintiff said: “I ran a riding academy, but tbe barn was private. . . . I work in tbe winter and rent horses in tbe summer. . . . Q. Your business is running tbis riding academy for hiring horses and it has been that right along for seven years? A. In the summer. . . . After I bought tbe Hendrix property I did not run a riding academy. I closed tbe business on Dorch Street, and just moved tbe stuff to the cabin and stored tbe horses. ... I never rented tbe horses to anybody. . . . There were no saddles in tbe barn. ... It was private.”

Tbe defendant offered to return tbe premium paid by plaintiff, and demurred to tbe evidence. Overruled; exception.

There was a verdict for tbe plaintiff and judgment thereon, from which tbe defendant appeals, assigning as principal error tbe refusal of tbe court to sustain the demurrer to the evidence.

*Jones & Ward for plaintiffs, appellees.*

*Smathers ■& Meelcins for defendant, appellant.*

Stacy, C. J.

Tbe appellant seeks to pose tbe question whether nonsuit is proper on plea of avoidance when plaintiff’s own evidence shows no liability to him under tbe policy in suit. *Alspaugh v. Ins. Co.,*121 N. C., 290, 28 S. E., 415.

A careful perusal of tbe record leaves us with tbe impression that it falls short of presenting tbe question. At most, tbe plaintiff’s testimony is equivocal on the issue of avoidance, or increased hazard within the meaning of tbe policy. Tbis carries tbe case to the jury. *Shell v. Rose-man,*155 N. C., 90, 71 S. E., 86. Discrepancies and contradictions, even *534in plaintiff's evidence, are for the twelve and not for the court. *Bank v. Ins. Co.,*223 N. C., 390, 26 S. E. (2d), 862. The equivocation in plaintiff's testimony affected his credibility, but did not work a dismissal of the action. *Ward v. Smith,*223 N. C., 141, 25 S. E. (2d), 463. Counsel for the defendant, no doubt, made full use of this equivocation in his argument.

Moreover, the mortgagee, who is also a plaintiff and interested by virtue of the loss-payable clause in the policy, may stand in an even stronger position than the owner on the motion to nonsuit. But we do not reach this point.

In the absence of the charge, which is not sent up, it is presumed the jury was properly instructed, both in respect of the evidence and the law arising thereon. *S. v. Hargrove,*216 N. C., 570, 5 S. E. (2d), 852; *S. v. Jones,*182 N. C., 781, 108 S. E., 376.

On the record as presented, the motion to' nonsuit was properly overruled. The appeal is limited to this one question.

No error.