Wheeler v. Denton
Decision Date | 05 August 1970 |
Docket Number | No. 709SC402,709SC402 |
Court | North Carolina Court of Appeals |
Parties | Samuel Macon WHEELER v. John Wayne DENTON and Vester Earp. |
Hubert H. Senter, Franklinton, for plaintiff-appellee.
Reynolds & Farmer, by F. Alton Russell, Raleigh, for defendants-appellants.
The first contention of defendant is that the court erred in refusing to grant defendant's motion for judgment as of nonsuit. G.S. § 1--183, which provided for the motion for judgment as of nonsuit, was repealed by the 1967 Legislature, effective 1 January 1970. The new procedure, effective 1 January 1970, substituted the motion for a directed verdict in its stead, G.S. § 1A--1, Rule 50(a). In the comments under G.S. § 1A--1, Rule 50, it is stated:
'Under the rules, at the close of the claimant's evidence, the party defending in a jury trial will be restricted to the directed verdict motion--a motion that if granted will result in a judgment on the merits disposing of the case finally in the absence of reversal on appeal. * * *'
However, in our discretion, we shall treat the defendant's motion for 'judgment of nonsuit' made at the close of plaintiff's evidence, and again at the close of all the evidence, as a motion for a directed verdict under G.S. § 1A--1, Rule 50. The new rules contemplate that the name of the motion is not as important as the substance.
G.S. § 1A--1, Rule 50(a) reads as follows:
(Emphasis Added.)
The record before us reveals that the defendant did not state any grounds for his motion for judgment of nonsuit. Since the statute expressly requires that 'specific grounds' shall be stated in a motion for a directed verdict, this provision of the rule is mandatory. The appellant, having failed to state 'specific grounds,' is not entitled upon this appeal to question the insufficiency of the evidence to support the verdict. Budge Manufacturing Co. v. United States, 280 F.2d 414 (3rd Cir. 1960).
However, if the defendant had moved for a directed verdict on the grounds that the evidence failed to show negligence on his part, we think that there was ample evidence of the defendant's negligence to require submission of the case to the jury.
The defendant further assigns error to the judge's charge. Specifically, the defendant contends that certain of the plaintiff's contentions as given by the judge were not supported by the evidence. As a general rule, objections to the statement of contentions arising on the evidence must be made before the jury retires or they are deemed to have been waived. State v. Ford, 266 N.C. 743, 147 S.E.2d 198 (1966); In re Will of Kemp, 236 N.C 680, 73 S.E.2d 906 (1953); Powell v. Daniel, 236 N.C. 489, 73 S.E.2d 143 (1952). In addition, the defendant says that the court did not give 'equal stress' to defendant's contentions because the defendant's contentions were not equal in length with the plaintiff's contentions. It is not required that the statement of contentions be of equal length. Durham v. Realty Co., 270 N.C. 631, 155 S.E.2d 231 (1967). We have reviewed the charge of the court, and no prejudicial error is made to appear.
Plaintiff's complaint alleged joint and concurrent negligence of Denton and the defendant. Plaintiff settled with Denton, and Denton was released as a defendant by written instrument under the provisions of G.S. § 1B--4. The case went to trial against the defendant Earp. The jury answered the issue of negligence in the affirmative and the issue of damages in the sum of $10,000.00. The judgment entered against the defendant for $6,250.00 contains the following:
Earp contends that the trial judge committed error in entering the judgment for $6,250.00 and argues that the court should have reduced the amount of the recovery to $3,750.00 which was the amount paid by Denton.
G.S. § 1B--4 reads as follows:
'When a release or a covenant not to sue or not to enforce judgment is given in Good faith to one of...
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