Harper v. Bulluck

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Harper v. Bulluck, 198 N. C. 448, 152 S. E. 405 (N.C. 1930)
• Decision Date: 12 March 1930
• Docket Number: 58.
• Parties: HARPER v. BULLUCK.

152 S.E. 405

198 N.C. 448

HARPER v. BULLUCK.

No. 58.

Supreme Court of North Carolina

March 12, 1930

Appeal from Superior Court, Edgecombe County; Devin, Judge.

Action by O. E. Harper, administrator of Mary Ruth Harper, deceased against Frank Bulluck. Judgment for plaintiff, and defendant appeals.

No error.

Question of proximate cause is for jury.

This is a civil action to recover damages resulting from the death of plaintiff's intestate, caused by the negligence of defendant.

The issues submitted to the jury were answered as follows:

"1. Was the death of plaintiff's intestate caused by the negligence of defendant, as alleged in the complaint? Answer, Yes.

"2. If so, what damage is plaintiff entitled to recover? Answer, $2,083.30."

From judgment on the verdict, defendant appealed to the Supreme Court.

Thos J. Pearsall, of Rocky Mount, and Geo. M. Fountain and Gilliam & Bond, all of Tarboro, for appellant.

J. W. Keel and C. C. Pierce, both of Rocky Mount, and Ward & Grimes, of Washington, N. C., for appellee.

CONNOR J.

Defendant's only assignment of error on his appeal to this court is based on his exception to the order of the trial court, refusing to allow his motion for judgment as of nonsuit at the close of all the evidence. C. S. § 567. In support of this assignment of error, defendant contends:

(1) That there was no evidence at the trial that this action was begun within one year from the date of the death of plaintiff's intestate.

(2) That there was not sufficient evidence that the death of plaintiff's intestate was the proximate result of the eating by her of weiners or sausages, manufactured by the defendant, and sold by him to plaintiff's intestate.

It is alleged in the complaint and admitted in the answer that plaintiff's intestate died on August 29, 1927. It does not appear from the evidence set out in the case on appeal, when this action to recover damages for her wrongful death was begun, whether before or after the expiration of one year from said date. It does appear, however, from the record, as certified to this court on defendant's appeal, that the summons was issued on April 18, 1928. There is no contention that this is not the date of its issuance and therefore of the commencement of this action. It thus appears that the action was in fact brought by the plaintiff within one year from the date of the death of his intestate. C. S. § 160.

In Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399, 401, it is said that "the authorities are to the effect that courts will take judicial notice of facts and entries of record in the suit being presently tried, and, in support of the validity of the verdict and judgment, it is proper for the appellate court to assume that a fact of this character was brought to the attention of the jury in some permissible way." Where the record shows that an action to recover damages for a wrongful death was brought within one year from the date of the death, and that there was no controversy at the trial as to whether or not it was brought within such time, an order refusing to allow defendant's motion for judgment as of nonsuit will not be held error in this court, because it does not affirmatively appear in the case on appeal that the summons was issued prior to the expiration of one year from the admitted date of the death. Where it affirmatively appears from the evidence as certified to this court that the action was not brought within the year, a judgment dismissing the action as of nonsuit, will be affirmed, as was done in the case of Hanie v. Penland, 193 N.C. 800, 138 S.E. 165. See Tieffenbrun v. Flannery (N. C.) 151 S.E. 857, decided February 26, 1930, and cases cited in the opinion of Brogden, J.

The evidence offered by the plaintiff tended to show that defendant was negligent with respect to the meat used by him and his employees in the manufacture of the weiners or sausages which he sold to plaintiff's intestate, and which she ate almost immediately after she had bought them. Defendant offered evidence to the contrary. The conflicting evidence with respect to defendant's negligence as alleged in the complaint was properly submitted to the jury. It is sufficient to say that the evidence offered by plaintiff was amply sufficient to support his allegation...