Keystone Driller Co v. Worth

• Decision Date: 17 December 1895
• Court: North Carolina Supreme Court
• Parties: KEYSTONE DRILLER CO. v. WORTH et al.

16 S.E. 427

117 N.C. 515

KEYSTONE DRILLER CO.

v.WORTH et al.

Supreme Court of North Carolina.

Dec. 17, 1895.

Right to Jury Trial — Exceptions to Master's Report.

Where, against defendant's objection, the issues were sent to a referee for trial, and the referee filed 14 findings of fact, some of which related to questions of fact not in issue under the pleadings, and defendant filed exceptions to the findings, a demand at the end of his exceptions for a jury trial on all the issues raised thereby was too general to entitle him to such a trial.

Appeal from superior court, Mecklenburg county; Robinson, Judge.

Action by the Keystone Driller Company against W. E. Worth and another for goods sold under a contract. Judgment was rendered for defendants, and plaintiff appeals. Reversed.

Burwell, Walker & Cansler, Geo. E. Wilson, and H. W. Harris, for appellant.

Jones & Tillett and Clarkson & Duls, for appellees.

AVERY, J. The constitution of North Carolina (article 1, § 19) guaranties to every person the right, which is declared "sacred and inviolable, " to demand a trial by jury of the issues of fact arising "in all controversies at law respecting property"; and he cannot be deprived of this right except by his own consent. Andrews v. Pritchett, 66 N. C. 387; Armfield v. Brown, 70 N. C. 27. It is provided, also, in the constitution (article 4, § 13), that "in all issues of fact joined in any court the parties may waive the right to have the same determined by a jury." It being left to the legislature to determine in what manner a party to an action should manifest his willingness to waive his constitutional right, and submit all issues of fact as well as of law to the judge, instead of the jury, it is provided by statute (Code, § 416) that his failure to appear should be construed as equivalent to his express consent to a different mode of trial, and that his actual assent might be given either by the written agreement of himself or his attorney, or by oral consent entered in the minutes of the court. The effect of this submission of the whole controversy to the judge is to invest him with the additional capacity of a juror, in which he hears the evidence subject to the right of the parties to have him, in his other capacity of judge, pass upon its competency when offered. Manufacturing Co. v. Baker, 104 N. C. 148, 10 S. E. 254. Another method provided by statute (Code, § 420) of substituting by agreement of parties a different mode of trying issues of fact raised by the pleadings from that which either has the right to demand is submission to referees. When the consent of the parties is once given to the substitution of a referee for the jury, the order of reference cannot be annulled, and the right of trial by jury reinstated, except by the same authority which authorized its entry upon the minutes, —the concurrent consent of all of the parties. Smith v. Hicks, 108 N. C. 251, 12 S. E. 1035; Perry v. Tupper, 77 N. C. 413. The referee, once appointed, is, like the judge, when there is waiver of jury trial, invested with the powers of both judge and jury, but with the difference that the authority is conferred upon the referee not for a particular term or limited time, but until the final hearing of the cause. The difficulty of examining or taking long and often complicated accounts in the progress of a trial, so as to enable the jury to reach a satisfactory conclusion in reference to the bearing of such evidence upon their verdicts, rendered it necessary also to confer upon the trial judge, by statute (Code, § 421), the power to order a compulsory reference for the purpose of making calculations and presenting results, instead of data, which could not be readily made available by a jury. The preliminary question whether a party is entitled to a decree, as it was called under the former practice "quod computet, " must be settled by the court, and, when once determined without exception, can never be raised again. Barrett v. Henry, 85 N. C. 324. In Klutts v. McKenzie, 65 N. C. 102, Chief Justice Pearson delivering the opinion of the court, it was held, without adverting to the application of the constitutional guaranty as well to controversies which, under the former practice, would have been suits in equity, as those that would have been actions at law, that a party had no right to demand a trial by jury of an issue involving a complicated account. But the court subsequently called attention to the inadvertence, and declared the ruling modified (Armfield v. Brown, supra; Lippard v. Roseman, 70, N. C. 34, 72 N. C. 427) so as to concede the right, if not barred by failure to demand it in apt time.

The correctness of the ruling in the case at bar depends upon the questions when and how a constitutional right may be waived. "Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and consent to such action as would be invalid if taken against his will." Cooley, Const. Lim. (6th Ed., by Angell) 214. Not only has the legislature declared how a party may waive the benefit of the provision of the constitution in reference to trial by jury, but the courts have from time to time declared that the waiver may be made by conduct inconsistent with the intent to insist upon it. Where a party omits at an opportune moment to declare his purpose to claim the constitutional protection, and thereby so misleads his adversary as that to insist upon it at a later stage of the...