Baker v. Malan Const. Corp., 19
Decision Date | 20 September 1961 |
Docket Number | No. 19,19 |
Court | North Carolina Supreme Court |
Parties | R. C. BAKER, t/a Baker Oil Company, v. MALAN CONSTRUCTION CORPORATION. |
Jordan, Dawkins & Toms, Raleigh, for defendant-appellant.
Walter H. Oakey, Hertford, and John H. Hall, Elizabeth City, for plaintiff-appellee.
The assignment of error directed to the denial of defendant's motion for judgment of nonsuit is overruled. While diverse inferences may be drawn therefrom, the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the case to the jury on appropriate issues and under proper instructions. In this connection, see Peele v. Powell, 156 N.C. 553, 73 S.E. 234, Id. on rehearing, 161 N.C. 50, 76 S.E. 698; Whitehurst v. Padgett, 157 N.C. 424, 73 S. E. 240; Dozier v. Wood, 208 N.C. 414, 181 S.E. 336; Taylor v. Lee, 187 N.C. 393, 121 S.E. 659; Tarkington v. Criffield, 188 N.C. 140, 124 S.E. 129; Warren v. White, 251 N.C. 729, 112 S.E.2d 522, and cases cited therein; Annotation: 20 A.L.R.2d 246 et seq., particularly § 7, pp. 262-268.
Since a new trial is awarded, we refrain from discussing the evidence presently before us. McGinnis v. Robinson, 252 N.C. 574, 576, 114 S.E.2d 365; Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E.2d 637.
Defendant contends the court erred in refusing to submit the first and second issues tendered by it and in submitting the single issue, to wit, 'In what amount, if any, is the defendant indebted to the plaintiff?'
'(Our italics.) McIntosh, North Carolina Practice and Procedure, § 510; McIntosh, Second Edition (Wilson), § 1353.
An issue of fact arises when the answer controverts a material allegation of the complaint. G.S. § 1-196; G.S. § 1-197; Braswell v. Johnston, 108 N.C. 150, 12 S.E. 911; General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 466, 117 S.E.2d 479, and cases cited. 'An issue of fact must be tried by a jury, unless a trial by a trial by a jury is waived or a reference ordered.' G.S. § 1-172; Wells v. Clayton, 236 N.C. 102, 105, 72 S.E.2d 16, and cases cited.
Denmark v. Atlantic & N. C. R. Co., 107 N.C. 185, 12 S.E. 54, 55; Bowen v. Whitaker, 92 N.C. 367; Braswell v. Johnston, supra; Tucker v. Satterthwaite, 120 N.C. 118, 27 S.E. 45; Falkner v. Pilcher & Co., 137 N.C. 449, 49 S.E. 945; Holler v. Western Union Tel. Co., 149 N.C. 336, 63 S.E. 92, 19 LR.A.,N.S., 475; Griffin v. United Services Life Insurance Co., 225 N.C. 684, 686, 36 S.E.2d 225; Turnage v McLawhon, 232 N.C. 515, 61 S.E.2d 336. (Note: Sections 395 and 400 of The Code are now codified as G.S. § 1-200 and G.S. § 1-173, respectively.)
In Bowen, Merrimon, J. (later C. J.), discusses the purpose for which Section 395 of The Code, now G.S. § 1-200, was enacted. No distinct issues were submitted. The verdict was 'that the jury find all issues in favor of the plaintiff, and assess his damages at $250.' It was held this general finding did not comply with the mandatory requirements of Section 395 of The Code and a new trial was awarded.
In Denmark, the plaintiff's action was to recover damages for personal injuries allegedly caused by defendant's negligence in the operation of its engine. The defendant tendered issues of negligence, contributory negligence and damages. The trial judge, declining to submit the issues so tendered by the defendant, submitted instead a single issue, to wit, 'What damages, if any, is the plaintiff entitled to recover?' The defendant excepted. The jury answered: '$5,000.' A new trial was awarded on account of the court's failure to submit the main issue raised by the pleadings, to wit, whether the plaintiff's injuries were caused by the negligence of the defendant. This Court, in opinion by Avery, J., said: 'The question of quantum of damages is an incidental one, the right to have them assessed at all depending upon the preliminary decision of the real issues of fact raised by the pleadings.' (Our italics.)
In Braswell, the main issue raised by the pleadings was whether the contract sued on was an entire contract. The defendant tendered issues with reference thereto. Instead, the court submitted only the single issue, 'How much, if any, is the plaintiff entitled to recover?' A new trial was awarded for failure to submit an issue determinative of the plaintiff's right to recover. This Court, in opinion by Avery, J., said: 'The judge who tries the case may, in his discretion, confine the inquiry to one or more of the issues raised by the pleadings, provided that he does not thereby deprive a party of the opportunity to present the law arising out of some view of the testimony to the jury, through the medium of an issue submitted, and provided a judgment can be predicated upon the finding, though in the exercise of this power by the judge it should be borne in mind that The Code system contemplates distinct findings upon material issues, and these should be submitted, where it can be done without repetition or confusion.' (Our italics.) In this connection, see Emery v. Raleigh & G. R. Co., 102 N.C. 209, 9 S.E. 139, and McAdoo v. Richmond & D. R. Co., 105 N.C. 140, 11 S.E. 316.
In Shoe Co. v. Hughes, 122 N.C. 296, 29 S.E. 339, 340, material issues of fact determinative of plaintiff's right to recover were raised by the pleadings. Over defendant's objection, the single issue, 'Is the defendant indebted to the plaintiff, and, if so, in what amount?' was submitted. A new trial was awarded on the ground this issue did not properly present the contentions of the parties. This Court, in opinion by Furches, J. (later C. J.), said:
In Hatcher v. Dabbs, 133 N.C. 239, 45 S.E. 562, plaintiff's action was to recover the reasonable value of services rendered by him to defendant's intestate. Plaintiff alleged he had entered into a special contract with defendant's intestate under which, in consideration of plaintiff's services, defendant's intestate promised to devise and bequeath to plaintiff his entire estate but that defendant's intestate failed to do so. Defendant denied his intestate entered into the alleged agreement with plaintiff. The court, over defendant's objection, submitted one issue, 'What damages, if any, is the plaintiff entitled to recover of the defendant?' This Court, in opinion by Walker, J., said: Again: Again: 'The submission of issues is not a mere matter within the discretion of the court, but it is now a mandatory requirement of the law; and a failure to observe this requirement will entitle the party who, has not in some way lost the right to have the error of the court corrected.' (Our italics.)
In Busbee v. Western North Carolina Land & Lumber Co., 151 N.C. 513, 66 S.E. 577, 578, the single issue, 'What damages, if any, are the plaintiffs entitled to recover?' was submitted. A new trial was awarded. This Court, in opinion by Walker, J., said: 'The...
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