James A. PITTMAN
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
No. 8516SC1037.
Court of Appeals of North Carolina.
February 18, 1986.*443 Musselwhite, Musselwhite & McIntyre by W. Edward Musselwhite, Jr., Lumberton, for plaintiff-appellee.
Moore, Ragsdale, Liggett, Ray & Foley by Peter M. Foley, Raleigh, for defendant-appellant.
HEDRICK, Chief Judge.
Defendant contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict on the grounds that the evidence established as a matter of law that plaintiff made willful and material misrepresentations to the defendant insurance company. We disagree.
G.S. 58-176(c) governs defendant's affirmative defense of material misrepresentation. The statute, in pertinent part provides:
This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.
To prove the G.S. 58-176(c) misrepresentation defense, defendant must show that the insured made statements that were: 1) false; 2) knowingly and willfully made; and 3) material. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985).
Defendant's motion for directed verdict and its motion for judgment notwithstanding the verdict raised the identical question. Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981). The question raised is whether the plaintiff's evidence, when taken as true and considered in the light most favorable to the plaintiff, was insufficient as a matter of law to justify a verdict for the plaintiff. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976). Stated another way, the question raised is whether "the evidence was of such a character that reasonable men could form divergent opinions of its import, thereby justifying submission of the issues to the jury." Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 371, 329 S.E.2d 333, 339 (1985).
A review of the evidence relating to the issue of defendant's misrepresentation defense demonstrates that the evidence, when viewed in the light most favorable to *444 plaintiff, the non-movant, was sufficient to support a jury finding that the plaintiff did not knowingly and willfully make a material misrepresentation to the insurance company so as to void the policy under G.S. 58-176(c). The jury could have reasonably concluded that plaintiff's statements regarding who he was with prior to the fire did not influence defendant's decisions in investigating, adjusting or paying the claim and were therefore not material. The jury could have believed plaintiff when he testified that he forgot that the newspapers used to clean painting and refinishing equipment were in the closet. The jury also could have believed plaintiff when he explained his confusion concerning what property was damaged by fire and how he was supposed to complete the property loss form.
Defendant next assigns error to the trial court's denial of its Rule 59 motion "to set aside the verdict or in the alternative to require a remittitur." The courts of the State of North Carolina have no authority to grant remittiturs without the consent of the prevailing party. Bethea v. Kenly, 261 N.C. 730, 136 S.E.2d 38 (1964). Failing to do that which the trial court has no authority to do is hardly an abuse of discretion.
An appellate court's review of a trial judge's discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). The record in the present case demonstrates no such abuse of discretion.
Defendant's final contention on appeal is that the trial court erred in denying appellant's motion for directed verdict regarding plaintiff's claim for additional living expenses and for damage to real property on the grounds that plaintiff did not present sufficient evidence to support the recoveries. Defendant argues that the insurance policy requires compensation based upon actual cash value and that no evidence of actual cash value was submitted. In the pretrial order, defendant stipulated to the cost of repair and made a list of triable issues which included the proper amount of personal property damage compensation and additional living expenses but did not include the proper amount of real property damage compensation. We hold that by stipulating to the costs of repairing the real property and failing to list the proper amount of real property damage compensation as a triable issue, defendant waived jury trial on this issue. Therefore the trial court did not err in denying defendant's directed verdict motion pertaining to real property damage.
The trial court also did not err in denying defendant's directed verdict motion regarding additional living expenses. Plaintiff put on evidence from which the jury could have reasonably found additional living expenses in the amount of $1,500.
All of defendant's assignments of error are overruled. In the trial we find no prejudicial error.
No error.
WEBB and PARKER, JJ., concur.