April 25, 1966.
This is an appeal from a verdict and judgment for plaintiff for $900.00 actual damages and $3600.00 punitive damages in an action for the alleged breach of an insurance contract accompanied by a fraudulent act. At the conclusion of plaintiff's testimony, the defendant insurance company moved to strike from the complaint the allegations relating to fraud and punitive damages upon the ground that plaintiff's evidence was insufficient to establish fraud. This motion was overruled, and the defendant presented the testimony of three witnesses. Upon the conclusion of all of the testimony, the defendant did not renew its motion to strike and did not move for a directed verdict or for an instruction to the jury eliminating punitive damages.
This appeal is upon three exceptions, all of which rest upon the claimed insufficiency of the evidence to support the verdict. The failure of a defendant to move for a nonsuit or directed verdict at the trial precludes a challenge in this court to the sufficiency of the evidence. Marthers v. Hurst, 226 S.C. 621, 86 S.E.2d 581; Circuit Court Rule 76 and decisions cited in footnotes. It does not better defendant's situation to regard its motion to strike as equivalent to a motion for nonsuit. When the defendant presented evidence, it lost the opportunity to have the court's refusal of its motion reviewed in the light of plaintiff's evidence alone. Williamson v. Charleston and W.C.R. Co., 222 S.C. 455, 73 S.E.2d 537; Guthke v. Morris, 242 S.C. 56, 62, 129 S.E.2d 732, 735. An appropriate motion in the trial court after all of the evidence is in is necessary to preserve an issue as to the sufficiency of the evidence for review by this court.
MOSS, Acting C.J., LEWIS and BUSSEY, JJ., and LEGGE, Acting J., concur.