Anderson v. Butler

• Decision Date: 25 February 1974
• Docket Number: No. 49,49
• Citation: 284 N.C. 723,202 S.E.2d 585
• Court: North Carolina Supreme Court
• Parties: Eugene S. ANDERSON, II, by his Guardian Ad Litem, et al. v. Cornelius BUTLER, Jr., and wife, Phyllis H. Butler.

Page 585

202 S.E.2d 585

284 N.C. 723

Eugene S. ANDERSON, II, by his Guardian Ad Litem, et al. v. Cornelius BUTLER, Jr., and wife, Phyllis H. Butler.

No. 49.

Supreme Court of North Carolina.

Feb. 25, 1974.

Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Greensboro, for plaintiffs appellants.

Harry Rockwell, John R. Hughes, Greensboro, and T. Worth Coltrane, Asheboro, for defendants appellees.

BRANCH, Justice.

Initially we are confronted with plaintiffs' contention that defendants are not entitled to present as an assignment of error the denial of their Motions for directed verdicts upon appeal since they assigned no grounds for the Motions in the trial court.

Rule 50(a) requires that 'A motion for a directed verdict shall state the specific grounds therefor.'

The Federal Courts have construed the identical provisions in their Rule 50(a) of the Federal Rules to mean that the requirement is mandatory. Capital Transportation Company v. Compton, 187 F.2d 844 (8th Cir. 1951); Atlantic Greyhound Corp. v. McDonald, 125 F.2d 849 (4th Cir. 1942); Duncan v. Montgomery Ward & Co., 108 F.2d 848 (8th Cir. 1940); Wright & Miller, Federal Practice and Procedure: Civil § 2533. Our Court of Appeals has adopted the Federal construction. Wheeler v. Denton, 9 N.C.App. 167, 175 S.E.2d 769. The question has not been directly presented to this Court, but the Federal construction of the rule was approved in a dictum statement in Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1.

We note that some of the Federal Courts have held that the rule is sufficiently complied with when the moving party makes his position clear by oral explanation, Dowell, Inc. v. Jowers, 166 F.2d 214 (5th Cir. 1948), and when there is but a single issue, a Motion for directed verdict properly presents to the appellate courts the question of the sufficiency of the evidence to carry the case to the jury. Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748 (8th Cir. 1966).

The purpose of the rule is to apprise the Court and the adverse parties of movants' grounds for the motion.

Professor James E. Sizemore's excellent discussion of the general scope and philosophy of the New Rules in 5 Wake Forest Intramural Law Review 1, at p. 37, (1969) includes the following:

'. . . If movant states the specific grounds of the motion, plaintiff may be able to meet the defect with proof, and his case would be complete. If movant was not required to state the specific ground, the defect might be the cause of a later judgment notwithstanding the verdict when it is too late for plaintiff to supply the proof. Failure to state specific grounds for the motion is sufficient reason to deny the motion . . .'

We hold that the provision in Rule 50(a) that a motion for a directed verdict shall state the specific grounds therefor is mandatory. However, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties.

In instant case, it is obvious that the motion challenged the sufficiency of the evidence to carry the case to the jury. There was no misapprehension on the part of the trial judge or the adverse parties as to the grounds for the motion. We, therefore, elect to review the denial of defendants' motions for directed verdicts.

We turn to the principal question presented by this appeal, that is, whether the evidence was sufficient to withstand defendants' motions for directed verdict.

All of the record evidence shows that the minor plaintiff was on defendants' premises as an invited guest and was therefore a licensee. Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717.

If the owner, while the licensee is upon the premises exercising due care for his own safety, is actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active or affirmative negligence. Hood v. Coach Company, 249 N.C. 534, 107 S.E.2d 154; Wagoner v. R.R., 238 N.C. 162, 77 S.E.2d 701. We think that a higher measure of care is required when a duty is owed to young children. In the case of Greer v. Lumber Co., 161 N.C. 144, 76 S.E. 725, this Court quoted with approval from Holmes v. R.R., 207 Mo. 149, 105 S.W. 624, the following:

'. . . 'But common experience tells us that a child may be too young and immature to observe the care necessary to his own preservation, and therefore, when a person comes in contact with such a child, if its youth and immaturity are obvious, he is chargeable with knowledge of that fact and he cannot indulge the presumption that the child will do what is necessary to avoid an impending danger. Therefore, one seeing such a child in such a position is guilty of negligence if he does not take into account the facts that it is a child, and regulate his own conduct accordingly . . .''

See also, 57 Am.Jur.2d Negligence, § 124.

Ordinarily a parent is not liable for the torts of his minor child. Griffin v. Pancoast, 257 N.C. 52, 125 S.E.2d 310; Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210. However, the parent may be liable if a tort is committed while the minor child is acting as the servant or agent of the parent and the negligent act was the proximate cause of an injury to another. Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096. And a parent may be liable because of his independent negligence if he permits his child to possess a dangerous instrumentality which causes injury to another. Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474; Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598; Bowen v. Mewborn, 218 N.C. 423, 11 S.E.2d 372. Likewise, when a parent entrusts to an immature child an instrumentality, such as an automobile, which is not inherently dangerous but which becomes dangerous because of the child's immaturity or lack of judgment, the parent may incur liability for injuries or damages to others resulting from the use of the instrumentality by the child. In both of the latter instances, liability arises from the parents' independent negligence and not from the imputed negligence of the child. The test of responsibility in all of these types of cases, as in all negligence actions, is whether an injurious result could have been foreseen by a person of ordinary prudence. Linville v. Nissen, Supra; 57 Am.Jur.2d, Negligence, §§ 110 and 118.

It is our opinion, and we hold, that a forklift is not a dangerous instrumentality Per se. Rather, like an automobile, it is a dangerous instrumentality when placed in the hands of a person who lacks the capacity to operate it safely. Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134; Linville v. Nissen, Supra; Miles v. Harrison, 115 Ga.App. 143, 154 S.E.2d 377; 57 Am.Jur.2d, Negligence § 110.

A motion for a directed verdict by a defendant in a jury case presents the question of whether, as a matter of law, the evidence is sufficient to require submission of the case to the jury. Bowen v. Constructors Equipment Rental Co., 283 N.C. 395, 196 S.E.2d 789; Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174, 188 S.E.2d 441. The motion...