Braswell v. Johnston
| Decision Date | 16 February 1891 |
| Parties | BRASWELL v. JOHNSTON. |
| Court | North Carolina Supreme Court |
This was a civil action, tried at the fall term, 1890, of the superior court of Edgecombe county, before WHITAKER, J Material facts were stated in the complaint and controverted in the answer, and a number of issues involving those questions were tendered. The judge submitted only the single issue: "How much, if anything, is the plaintiff entitled to recover?"
Where issues of fact are raised in the pleadings, and tendered by one of the parties, it is error for the court to refuse to submit such issues, and to confine the jury to the single question of the amount of damages.
G. M T. Fountain, for appellant.
John L Bridgers, for appellee.
AVERY J., (after stating the facts as above.)
"Issues arise upon the pleadings when a material fact or conclusion of law is maintained by the one party and controverted by the other." Code, § 391. "An issue of fact arises (1) upon a material allegation in the complaint controverted by the answer; or (2) upon new matter in the answer controverted by the reply; or (3) upon new matter in the reply, except an issue of law is joined thereon." Id. § 393. Instead of the issues tendered by the defendant and involving the question whether the contract was an entire one, the court submitted only the following: "How much, if anything, is the plaintiff entitled to recover?" It is settled that the requirement of the statute that an issue or issues must be submitted is mandatory. Denmark v Railroad Co., 107 N.C. --, 12 S.E. Rep. 54. 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. Emery v. Railroad Co., 102 N.C. 209, 9 S.E. Rep. 139. It is not necessary that the language of the pleadings should be incorporated in the issues, or that it should be clearly followed in drawing them. While it is not error, for instance, to submit only an issue involving the question whether a plaintiff has been injured and has sustained damage through the negligence of a defendant, even where contributory negligence is set up in the answer as a defense, and where the testimony also raises the further question whether, notwithstanding the negligence of the plaintiff, the defendant might by ordinary care have avoided the injury, (McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. Rep. 316; Lay v. Railroad Co., 106 N.C. 410, 11 S.E. Rep. 412; Bonds v. Smith, 106 N.C. 564, 11 S.E. Rep. 322; Boyer v. Teague, 106 N.C. 633, 11 S.E. Rep. 665,) the issue as to contributory negligence is required by statute to be raised by the pleadings, where that defense is relied upon. The other issue, involving the doctrine laid down in Davies v. Mann, 10 Mees. & W. 546, is not usually...
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