Overman v. Gibson Products Co. of Thomasville, Inc.

• Decision Date: 18 August 1976
• Docket Number: No. 7621SC250,7621SC250
• Citation: 227 S.E.2d 159,30 N.C.App. 516
• Court: North Carolina Court of Appeals
• Parties: Franklin Delano OVERMAN, Plaintiff, v. GIBSON PRODUCTS COMPANY OF THOMASVILLE, INC., d/b/a Gibson's Discount Store,and Jerry Lee Thomas, Defendants and Third-Party Plaintiffs, v. Franklin Monroe OVERMAN, C. T. Goforth, and T. L. Arney, Third-PartyDefendants.

Page 159

227 S.E.2d 159

30 N.C.App. 516

Franklin Delano OVERMAN, Plaintiff, v. GIBSON PRODUCTS COMPANY OF THOMASVILLE, INC., d/b/a Gibson's

Discount Store,and Jerry Lee Thomas, Defendants and Third-Party Plaintiffs, v. Franklin Monroe OVERMAN, C. T. Goforth, and T. L. Arney,

Third-PartyDefendants.

No. 7621SC250.

Court of Appeals of North Carolina.

Aug. 18, 1976.

Schoch, Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for plaintiff.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and William C. Raper, Winston-Salem, for original defendants.

BROCK, Chief Judge.

The case was called for trial during the 1 December 1975 session of Superior Court, Forsyth County. The plaintiff completed the presentation of his evidence during the afternoon of 3 December 1975. When plaintiff rested, the original defendants moved for directed verdicts. The trial judge excused the jury until the following morning and heard arguments upon the original defendants' motions. No ruling was made. After court reconvened the morning of 4 December 1975, the trial judge allowed the original defendants' motions for directed verdicts on the issue of punitive damages; however, he reserved ruling on the original defendants' motions for directed verdicts as to the entire cause of action in the following words: 'I intend to rule upon the evidence as offered up until the time the motion was made.'

Thereafter the jury returned to the courtroom, and the original defendants offered all of their evidence. When the original defendants rested on 4 December 1975, the trial judge again excused the jury for the day to return the morning of 5 December 1975. Before court was recessed for the day on 4 December 1975, the trial judge, by an order entered 4 December 1975, allowed the motion of the third party defendant T. L. Arney for a directed verdict.

Upon the convening of court on 5 December 1975 the trial judge announced that he was ready to rule on the original defendants' motions for directed verdicts made at the close of plaintiff's evidence. The trial judge granted defendants' motions for directed verdicts by stating that he 'is now ready to rule upon the motions for directed verdicts made by the defendants at the close of the plaintiff's evidence, and the Court will grant those motions.'

Plaintiff's proposed record on appeal contained a narration of defendants' evidence. Upon objection by defendants, the trial judge ordered that defendants' evidence should be deleted from the record on appeal and the following inserted in lieu thereof:

'Now, therefore, it is ORDERED that the evidence to be carried forward in the record on appeal shall consist of the plaintiff's evidence only, and the defendants' evidence in plaintiff's proposed record on appeal (beginning on page 84 and ending on page 103 thereof) shall be deleted from the record on appeal. In lieu thereof, the following statement shall be inserted in the record on appeal at the conclusion of the plaintiff's evidence and following the proceedings on motions ending on page 83:

"The Court reserved its ruling on defendants' motion for directed verdict so that the judge might have extensive testimony reread to him by the court reporter after the jury had recessed for the evening. The defendants then offered evidence. At the conclusion of all the evidence, the Court recessed for the evening. Upon the reconvening of court the following morning, the Court announced it was ready to rule upon the defendants' motion for directed verdict made at the close of the plaintiff's evidence, and then granted such motion.'

'It is further ORDERED that the index in plaintiff's proposed record on appeal be modified to delete any reference to defendants' evidence.'

The procedure followed by the trial judge in this case effectively frustrates the policy and purpose of G.S. 1A-1, Rule 50. We have held that by offering evidence, a defendant waives his Rule 50 motion for directed verdict made at the close of plaintiff's evidence. Woodard v. Marshall, 14 N.C.App. 67, 187 S.E.2d 430 (1972). This provision for waiver is necessary for the orderly conduct of a trial. The same rule applied prior to the adoption of our present Rules of Civil Procedure. Former G.S. 1--183 (repealed upon the effective date of our present rules) provided that by offering evidence, a defendant waived his motion for nonsuit made at the close of the plaintiff's evidence. With respect to the federal court's counterpart of our Rule 50, it is said:

'Technically a party waives his right to a directed verdict, if the motion is made at the close of his opponent's case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence. If the party fails to renew the motion he may not move for judgment notwithstanding the verdict nor may he claim error on appeal from denial of the motion at the close of the opponent's evidence. The renewed motion will be judged in the light of the case as it stands at that time. Even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent's case.' Wright & Miller, Federal Practice and Procedure: Civil § 2534.

The procedure followed by the trial judge in this case effectively negates the designed use of a judgment notwithstanding the verdict as provided by Rule 50(b). The following comments by Dean Dickson Phillips illustrate the point:

'The motion can be first made at the close of the evidence offered by an...