Young v. Southern Mica Co. of N. C.

• Decision Date: 06 May 1953
• Docket Number: No. 161,161
• Citation: 75 S.E.2d 795,237 N.C. 644
• Court: North Carolina Supreme Court
• Parties: YOUNG et al. v. SOUTHERN MICA CO. OF NORTH CAROLINA, Inc.

Page 795

75 S.E.2d 795

237 N.C. 644

YOUNG et al. v. SOUTHERN MICA CO. OF NORTH CAROLINA, Inc.

No. 161

Supreme Court of North Carolina.

May 6, 1953

W. E. Anglin, Burnsville, for plaintiffs, appellees.

Fouts & Watson, Burnsville, for defendant, appellant.

JOHNSON, Justice.

First, the defendant insists that its motion for judgment as of nonsuit should have been allowed.

Here the defendant relies on the clause in the lease which provides that it shall not be liable to the plaintiffs 'for any waste material dropped on their lands while in transit through the flume lines * * *'; whereas the plaintiffs point to the provision in the lease which stipulates that the mining operations do not authorize the defendant 'to dump waste' upon any of the lands of the plaintiffs.

This language is clear. 'Drop' means 'to fall like a drop'; whereas 'dump' means 'to deposit something in a heap, * * * to let fall in mass.' Webster's New International Dictionary, Second Edition, 1951.

Manifestly, the parties intended that the waste dirt should not be dumped on plaintiffs' land, but rather that it should be moved off the plaintiffs' land through the flume line. It was contemplated that small quantities from time to time might drop while in transit through the flume line. For this the defendant was not to be liable.

But here there is evidence tending to show that the flume line 'choked up' at the river end, and that thereafter the waste materials 'poured over,' 'piled up,' and were 'shoveled over' the bottom land until 'it piled up there 12 or 15 feet high,' where Superintendent Edge said: 'We shoveled it out of the flume line.'

This was 'dumping' within the clear meaning of the lease, and the motion for nonsuit was properly overruled.

Next, the defendant excepts to this portion of the charge to the jury:

'Now, the court charges you that if you find from the evidence, and by the greater weight, the burden being upon the plaintiff to so satisfy you, that the defendant, in transferring the waste from the mining operations, the jigging plant into South Toe River, caused the deposit of sand and waste from the jigging operation by shoveling the same from the flume line upon the bottom land of the plaintiffs or if you find from the evidence, and by the greater weight, that the defendants, by reason of the flume line breaking down, permitted the waste to flow upon the land of the plaintiffs, thereby causing it to be dumped upon the areas that have been described to you, then, and in that event, or either event, the court charges you that that would constitute dumping within the meaning of the term of this contract, and it would be your duty to answer the first issue yes.' (Italics added).

Here, the defendant contends that the court gave to the word 'drop' the meaning of 'dump', and that therefore the charge is in conflict with the provision of the lease which exempts the defendant from liability for damage caused by '* * * waste materials dropped while in transit through the flume lines.'

The contention is untenable. The rule is that where the language of a contract is free from ambiguity, the ascertainment of its meaning and effect is for the court, and not for the jury. Hilley v. Blue Ridge Insurance Co., 235 N.C. 544, 70 S.E.2d 570; Sellars v. Johnson, 65 N.C. 104. We find no ambiguity or uncertainty in the language of the contract before us. Accordingly, it was the duty of the court to declare its meaning. This the court did. Festerman v. Parker, 32 N.C. 474.

The court placed on the plaintiffs the burden of proving that the defendant deposited the waste on plaintiffs' land in a manner that amounted to 'dumping,' by shoveling it from the flume line, or by permitting, after failure to keep the flume line up, the waste to flow upon the bottom land, and left it to the jury to find the facts from the evidence.

True, the expression of the court which appears in italica amounts to a technical invasion of the province of the jury. However, on the record as presented it is not perceived that this expression could have been prejudicial to the defendant. In effect, it was but a short-hand statement of uncontroverted phases of the evidence, including statements made by defense witnesses to the effect that when the flume line choked up the waste materials 'just poured over and piled over the flume line and went over in the bottom,' and admissions of Superintendent Edge that the dirt was shoveled out of the line in great quantities and piled in places higher than the flume line itself. The challenged instruction may not be held as prejudicial error.

Another exception brought forward by the defendant presents the question whether the verdict was vitiated because of the presence on the jury of a person who had forfeited his citizenship by reason of conviction of a criminal offense.

The presiding judge, in response to the defendant's motion to set aside the verdict, found in substance these facts: that the juror in question was a regular juror, drawn from the panel and summoned by the sheriff, and passed by the defendant; but that when passed the defendant did not know the 'juror had forfeited his citizenship by service of a term in prison.' The court further found that the juror had filed a petition to have his citizenship restored under the provisions of G.S. § 13-1, and that immediately after the 'rendition of the judgment in this case, * * * counsel for the juror called the matter to the attention of the court and offered his witnesses for restoration of citizenship, * * * and that a judgment was signed * * *, restoring the citizenship of said juror * * *.' Upon the facts found, the defendant's motion to set aside the verdict was overruled, and the defendant excepted.

It may be conceded that the facts here shown would have been ground for challenge of the juror for cause. G.S. § 9-1, as rewritten by Chapter 1007, Session Laws of 1947. Nevertheless, his disqualification as shown does not ipso facto vitiate the verdict; nor do the disqualifying facts entitle the defendant to have the verdict set aside as a matter of law or right.

True, the judge found that the defendant did not know of the disqualifying facts until after trial. But even in such a case, in the absence of a showing that the juror on the voir dire examination falsely denied or concealed matters which would have established his disqualification, the motion first made after verdict was addressed to the discretion of the trial judge, and in such a case, in the absence of a showing of actual prejudice amounting to abuse of discretion, the ruling of the trial judge is not reviewable.

Our investigation discloses no decision of this Court dealing with the precise question here presented, i. e., whether criminality of a juror, as distinguished from other disqualifying causes, first discovered after verdict, vitiates the verdict and furnishes ground for a new trial as a matter of right. However, the conclusion here reached is supported in principle by numerous authoritative decisions of this Court; and the great weight of authority in other jurisdictions on the precise question of criminality of a juror supports the view here expressed. See State v. Crawford, 3 N.C. 298 (juror not a freeholder); State v. Patrick, 1856, 48 N.C. 443 (juror not a slave owner); State v. Douglass, 63 N.C. 500 (Sheriff who summoned jurors disqualified for having served as Sheriff during War between States); State v. White, 68 N.C. 158 (juror a nonresident of the county); State v. Davis, 80 N.C. 412 (juror an atheist); State v. Lambert, 93 N.C. 618 (juror under twenty-one years of age and not a freeholder); Baxter v. Wilson, 95 N.C. 137, 139 (juror related to plaintiff); State v. Council, 129 N.C. 511, 39 S.E. 814 (juror sworn in improper manner); State v. Maultsby, 130 N.C. 664, 41 S.E. 97 (juror related to prosecuting witness); State v. Lipscomb, 134 N.C. 689, 47 S.E. 44 (juror under twenty-one years of age); State v. Drakeford, 162 N.C. 667, 78 S.E. 308 (juror member of grand jury which found former bill which was fatally defective); State v. Levy, 187 N.C. 581, 122 S.E. 386 (history of right of challenge reviewed by Stacy, j. (later C. J.)); State v. Sheffield, 206 N.C. 374, 174 S.E. 105 (bias of juror); Commonwealth v. Wong Chung, 186 Mass. 231, 71 N.E. 292; ...