Kelly v. International Harvester Co.

• Decision Date: 10 March 1971
• Docket Number: No. 41,41
• Court: North Carolina Supreme Court
• Parties: Thurman L. KELLY v. INTERNATIONAL HARVESTER COMPANY.

Page 396

179 S.E.2d 396

278 N.C. 153

Thurman L. KELLY v. INTERNATIONAL HARVESTER COMPANY.

No. 41.

Supreme Court of North Carolina.

March 10, 1971.

Ervin, Horack & McCartha, by C. Eugene McCartha, Charlotte, for defendant appellee.

BOBBITT, Chief Justice.

Plaintiff states, as the sole question presented, the following: 'Was The evidence presented at trial, taken in the light most favorable to the plaintiff, sufficient to withstand motion for a directed verdict?' (Our italics.) In the discussion of this question, plaintiff ignores all particular findings of fact and conclusions of law made by Judge Collier and undertakes to establish that The evidence 'presented a question for the jury.'

The question now presented correctly by plaintiff is the identical question which was presented to the trial court by defendant's motion for a directed verdict, namely, whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury. In resolving this question, it was not required or appropriate that the trial court make 'Findings of Fact' and state 'Conclusions of Law.' To pass upon the single question of law presented, namely, the sufficiency of plaintiff's evidence to withstand defendant's motion for a directed verdict, we must look to the evidence and base decision thereon without regard to the trial court's 'Findings of Fact' and 'Conclusions of Law.'

When plaintiff presented his evidence and rested, defendant's motion for a directed verdict in its favor was the procedure prescribed by Rule 50(a) of the Rules of Civil Procedure, G.S. § 1A--1, for challenging the sufficiency of plaintiff's evidence for submission to the jury. The motion for a directed verdict under Rule 50(a) presents substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit under the (repealed) statute formerly codified as G.S. § 1--183. See Comment by Phillips in 1970 Pocket Part at p. 21 to McIntosh North Carolina Practice and Procedure, 2d ed., § 1488.15, hereinafter cited as Phillips. The motion for judgment of involuntary nonsuit under G.S. § 1--183 presented a question of law for decision by the court, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518, and cases cited; Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543; Chandler v. Moreland Chemical Co., 270 N.C. 395, 154 S.E.2d 502. The same question of law is now presented by a motion for a directed verdict under Rule 50(a).

'On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, As a matter of law, the evidence is insufficient to justify a verdict for the plaintiff.' 5 Moore's Federal Practice, § 41.13(4) at 1155 (2d ed. 1969). This statement is fully supported by well-considered decisions, including the following: O'Brien v. Westinghouse Electric Corporation, 293 F.2d 1 (3d Cir. 1961); Wolf v. Reynolds Electrical & Engineering Co., 304 F.2d 646 (9th Cir. 1962); Bragen v. Hudson County News Company, 321 F.2d 864 (3d Cir. 1963).

Nothing in Rule 50(a) suggests that defendant's motion for a directed verdict operated as a waiver of jury trial. Indeed, Rule 50(a) expressly provides that '(a) motion for a directed verdict which is not granted is not a waiver of trial by jury Even though all parties to the action have moved for directed verdicts.' (Our italics.)

Rule 50(a) concludes with this sentence: 'The order granting a motion for a directed verdict shall be effective without any assent of the jury.' The words, 'without any assent of the jury,' are used to dispel any apprehension that the jury is required to perform a perfunctory act in connection with the verdict in a case which is not submitted to it for determination. 5 Moore's Federal Practice, § 50.02(3), at 2331 (2d ed. 1969).

When a motion for a directed verdict under Rule 50(a) is granted, the defendant is entitled to judgment unless the court permits a voluntary dismissal of the action under Rule 41(a)(2). Under this rule, at the instance of the plaintiff, the court May permit A voluntary dismissal upon such terms and conditions as justice requires. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849, 853 (1947); Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intra.L.Rev. 1, 38 (1969). Here, prior to judgment, plaintiff did not request a voluntary dismissal and, subsequent to judgment, the motion by plaintiff was that the judgment be set aside and that he be granted a new trial.

Apparently, the 'Findings of Fact' and 'Conclusions of Law' made by the court at the instance of plaintiff's counsel were made under the apprehension that Rule 41(b) was or might be applicable. The ground for dismissal under Rule 41(b) is that 'upon the facts and the law the plaintiff had shown no right to relief.' (Our italics.) When applicable, Rule 41(b) requires that the court, when rendering judgment on the merits against the plaintiff, shall make findings of fact as provided in Rule 52(a). See Phillips, § 1375, p. 35; Sizemore, Op. cit. at 35. However, Rule 41(b) has no application when considering a motion for a directed verdict in a jury trial. See Phillips, § 1488.5, p. 19; Sizemore, Op. cit. at 36--38. By its express terms, Rule 41(b) applies only 'in an action tried by the court without a jury.'

In the present case, the 'Findings of Fact' and 'Conclusions of Law' were not required or appropriate and have no legal significance. Indeed, the briefs proceed on this assumption. Neither brief attributes significance to any finding of fact or any conclusion of law. They proceed on the assumption that the case is to be decided on the basis of The sufficiency of the evidence to go to the jury.

The evidence with reference to plaintiff's employment and discharge by Earnhardt, Harvester Company's franchised dealer in Salisbury, must be considered in the light of the existing relationships between Harvester Company and Earnhardt and of the Harvester Company's dealership in High Point and plaintiff's former involvement in the High Point dealership.

The evidence as to the relationship between Harvester Company and Earnhardt preceding and at the time of plaintiff's employment by Earnhardt (October 1, 1968) tends to show the following:

In meetings and discussions for several months prior to October 1, 1968, Gummerson expressed disapproval of Mr. Earnhardt's management of the Earnhardt dealership. According to Mr. Earnhardt's testimony, there was friction because of disagreements as to the respective liabilities of Earnhardt and Harvester Company to purchasers of International products under warranties issued in connection with sales. By letter(s) of termination dated August 19, 1968, the Harvester Company notified Earnhardt that its dealership was terminated as of February 20, 1969. Mr. Gummerson spoke of this as placing defendant On probation. Some two months prior to October 1, 1968, Mr. Earnhardt, with Gummerson's approval, had hired one Al Carter as general manager of Earnhardt's Harvester Company business. On October 1, 1968, Mr. Earnhardt employed plaintiff to replace Carter as such general manager. On Wednesday, October 10, 1968, George White, Zone Manager in the Harvester Company's Motor Truck Division, visited Earnhardt's place of business. On October 11, 1968, Mr. Earnhardt called Gummerson and advised him of plaintiff's employment by Earnhardt and that White had made statements indicating that the employment of plaintiff would not be acceptable to the Harvester Company. When expressing his disapproval of the hiring of plaintiff as general manager of Earnhardt's business for the Harvester Company, Gummerson told Mr. Earnhardt 'that Mr. Carter was doing a good job.'

The evidence as to the Harvester Company's dealership in High Point and plaintiff's former involvement in the High Point dealership tends to show the following:

Plaintiff was and is a 'truck specialist.' Prior to September, 1961, he had been employed as sales manager of a franchised dealer in Corbett motor trucks, Diamond motor cars, etc.

In September, 1961, Truck and Trailer Sales, the Harvester Company's franchised dealer in High Point, 'lacked about $75,000.00 of having anything.' For organizing a corporation, Carolina Truck and Trailer Sales, Inc. (Carolina), to take over the business and put it 'on its feet,' plaintiff received 25% Of the corporate stock and was made 'Vice President in charge of sales.' Plaintiff worked for Carolina until June, 1968, when his services 'were terminated * * * by mutual agreement.' During the last eighteen months of his employment by Carolina, plaintiff was also working for and president of a separate corporation, Continental Truck Leasing Company (Continental), 'which was a part of Carolina Truck and Trailer Sales.' During this period, the leasing company purchased from the sales company International trucks in the amount of 'say $150,000.00.'

During the last eighteen months of his employment by Carolina, plaintiff was having 'marital difficulties' and also 'a drinking problem.' Too, on account of necessary surgery, he was absent from the business for approximately five weeks. Carolina's volume of business dropped from $1,600,000.00 in fiscal year 1966 to $1,300,000.00 in fiscal year 1967. In fiscal year 1968, which ended in August, 1968, the volume 'had dropped to $700,000,' but 'that had been made up by Continental Leasing to the tune of $300,000.00 on a more profitable level than Carolina.' (Note: Continental also leased trailers which it purchased from Dorsett Distributing Company.) Fiscal year 1968 ended some two months after the termination of plaintiff's employment in June, 1968. Until two months before plaintiff's employment was...