Lumber Mutual Casualty Insurance v. Wells

Stacy, C. J.

The propriety of invoking the provisions of the Uniform Declaratory Judgment Act, G. S., Art. 26, under the circumstances here disclosed, is without challenge on the record.

Tryon v. Power Co., 222 N. C., 200 , 22 S. E. (2d), 450 ;

Myers v. Ocean Accident & Guarantee Corp., 99 F. (2d), 485;

S. c., 22 Fed. Supp., 450.

Cf. Casualty Co. v. DeLozier, 213 N. C., 334 , 196 S.

E., 318 . The defendants have demanded a jury trial on the issues raised by the pleadings in accordance with G. S., 1-261, which provides that when an issue of fact is involved it may be determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

We think the issue of exclusion, i.e., whether the automobile was being “used as a public or livery conveyance” within the meaning of the policy at the time of the injury, is such an issue of fact herein as should be determined by a jury under proper instructions from the court. The plaintiff alleges exclusion from liability under this provision, and the defendants allege coverage of the injuries in question. Coverage is conceded unless the use of the vehicle at the time bring it within the exclusion. The pleadings are not so clear in respect of the facts as to render it determinable without the aid of a definite finding.

Gibbs v. Ins. Co., 224 N. C., 462 , 31 S. E. (2d), 377 ;

Crowell v. Ins. Co., 169 N. C., 35 , 85 S. E., 37 .

*549 Oil tbe question of reformation, see Power Co. v. Casualty Co., 193 N. C., 618 , 137 S. E., 817 ; Anno. 49 A. L. R., 1513.

Error and remanded.