Modern Elec. Co. v. Dennis, 665

• Decision Date: 01 May 1963
• Docket Number: No. 665,665
• Citation: 259 N.C. 354,130 S.E.2d 547
• Parties: MODERN ELECTRIC COMPANY, Inc. v. S. E. DENNIS, T/A Dennis Motor Service.
• Court: North Carolina Supreme Court

Page 547

130 S.E.2d 547

259 N.C. 354

MODERN ELECTRIC COMPANY, Inc. v. S. E. DENNIS, T/A Dennis Motor Service.

No. 665

Supreme Court of North Carolina.

May 1, 1963

Bryant, Lipton, Bryant & Battle, by Victor S. Bryant and F. Gordon Battle, Durham, for defendant-appellant.

Haywood & Denny, by George W. Miller, Jr., and Egbert Haywood, Durham, for plaintiff-appellee.

SHARP, Justice.

This is the second appeal in this case. The first is reported in 255 N.C. 64, 120 S.E.2d 533. The evidence in the two trials was substantially the same, and reference is made to the former opinion for a full resume of both the pleadings and the evidence. Briefly, the controversy revolves around this question: Did plaintiff employ defendant as an independent contractor to unload and hoist the switchboard to the second floor of the building or did plaintiff merely lease defendant's servant and equipment in order to do the job himself? If, in the hoisting operation, the operator of the crane, Thomas A. Gooch, was subject to the control of plaintiff as a lent or hired servant, defendant would not be liable to the plaintiff for Gooch's negligence. Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227. For a full discussion of the law applicable to the loaned-servant situation, see the opinion of Bobbitt, J., in Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610. While this principle formed the background of the case, it was not brought into sharp focus either by the issues or in the charge.

Defendant assigns as error the italicized portion of the following excerpt from the charge:

'Now, if you find from the evidence and by its greater weight that the defendant through its employee failed to use due care, or that the defendant either himself or through his employee failed to properly supervise the hoisting operation and that he further had the duty to supervise it and you are satisfied by the greater weight of the evidence of those facts, and you are satisfied that this was negligence, that he was negligent in one of these respects, or negligent in any other way which the Court may not have specifically mentioned, and if you further are satisfied by the greater weight of the evidence that such negligence was a proximate cause of the damage suffered by the plaintiff, it would be your duty to answer Issue #1, YES.'

G.S. § 1-180 requires the trial judge to 'declare and explain the law arising on the evidence given in the case. ' We have repeatedly held that it is error for the judge to charge the jury as to matters materially affecting the issues but not raised in the pleadings or supported by the evidence in the case. State ex rel. Williams v. Dowdy, 248 N.C. 683, 104 S.E.2d 884; Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51; Farrow v. White, 212 N.C. 376, 193 S.E. 386; McGinnis v. Robinson, 252 N.C. 574, 114 S.E.2d 365. A fortiori, it is error to give the jury carte blanche to speculate and apply to the case their individual notions as to what might constitute negligence 'in any other way which the court might not have specifically mentioned. ' An identical instruction was specifically disapproved in Rudd v. Stewart, 255 N.C. 90, 120 S.E.2d 601. To borrow the phrase used by Justice Higgins in State ex. rel. Utilities Commission v. Public Service Company, 257 N.C. 233, 125 S.E.2d 457, this instruction was 'a grant to roam at large in an unfenced field. ' It would have been potentially hazardous even in the vacuous pre-television era. Today, as all trial judges know, on every panel there are jurors who have never before been to court but who have become arm-chair courtroom buffs as the result of regular attendance upon television trials which can be counted on to provide a dramatic solution to the issues in the case within the time allotted to the program. Frequently the denouement has not been supported by any visible evidence, but it is always calculated to satisfy the audience.

In Louisville & N. R. Co. v. Loesch, 215 Ky. 452, 284 S.W. 1097, 47 A.L.R. 347, the plaintiff sued for damages sustained when the car in which she was riding struck a guardrail at defendant's toll bridge. Her only allegation of negligence was that the defendant failed to adequately light the guardrail. The judge charged the jury that it was defendant's duty 'to use ordinary care to protect vehicular traffic using said bridge at said place at nighttime, by giving such notice, by the use of lights or other means as was reasonably sufficient to give timely warning to the traveling public of the presence of said timber guard referred to. ' (Italics ours) The court said:

'(W)e are impelled to the conclusion that the insertion of the words 'or other means' was not only erroneous but prejudicial to appellant's substantial rights. That such an instruction might have been misleading to the jury is obvious, for they might have assumed under that language it was the duty of the defendant to have had posted at or near the timber guards an employee to especially warn and notify each traveler of the existence of that timber guard, or they might have considered it to be the duty of defendant to use other means of an undefined nature for the furnishing of protection.'

Since this case must go back for a new trial because of the error in the charge, we deem it expedient to discuss one other question raised by defendant's assignments of error on this appeal. For the purpose of showing that he was not acting as an independent contractor on the occasion in question, defendant attempted to testify that he carried no liability insurance on this particular job; that when he assumed responsibility, it was his custom in all such instances to carry liability insurance; that on a previous job for the plaintiff, plaintiff had stopped the work when he learn...