Gilbert v. Moore , 268 N.C. 679 ( 1966 )

151 S.E.2d 577 (1966) 268 N.C. 679

Sue Johnson GILBERT
v.
Blanche H. MOORE.

No. 626.

Supreme Court of North Carolina.

December 14, 1966.

Bryan & Bryan, Robert C. Bryan, D. K. Stewart, Dunn, for plaintiff appellee.

Charles R. Williams, Robert B. Morgan, Robert H. Jones, Gerald Arnold, Morgan, Williams & Jones, Lillington, for defendant appellant.

HIGGINS, Justice.

The defendant's Assignment of Error No. 1 involves the court's denial of the motion to nonsuit. The evidence in the light most favorable to the plaintiff is sufficient to go to the jury and to sustain the verdict. Bennett v. Young, 266 N.C. 164, 145 S.E.2d 853; Bongardt v. Frink, 265 N. C. 130, 143 S.E.2d 286; Moss v. Tate, 264 N.C. 544, 142 S.E.2d 161. The motion was properly denied.

Assignment of Error No. 2 with respect to the exclusion of evidence requires a voyage of discovery through the record in order to ascertain what is involved. Balint v. Grayson, 256 N.C. 490, 124 S.E.2d 364; Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829. Actually the voyage of discovery discloses nothing of consequence. Assignment of Error No. 2 is not sustained.

The defendant places her main reliance for a new trial on the court's refusal to set aside the verdict because of the improper and prejudicial remarks to the jury "which [according to the defendant's brief] implied that the defendant had certain limits to his [sic] liability insurance." The remarks to which the assignment is addressed are quoted in the statement of facts. By inference, at least, it appears the presiding judge did not hear the remarks. However, in the brief, defendant's counsel admitted that "Judge Hall was advised of what had been said while the jury was out and offered to recall the jurors and instruct them to disregard the argument. The defendant chose not to have this done." (Emphasis added.)

By failing to move for a mistrial and by deciding to leave the jury uninstructed further with reference to the argument, the defendant took her chances on a favorable verdict. She may not be heard to complain when the verdict was returned against her. The rule in such cases is stated by Stacy, J., later C.J., in Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66: "There was no motion for a mistrial, or venire de novo, because of these alleged improper questions (liability insurance). Defendant elected to proceed with the trial and to take his chances with the jury as then impaneled." The motion for a new trial was denied.

The defendant did not except to the argument by plaintiff's counsel. She attempts to make use of it as ground for a motion to set the verdict aside. The motion was addressed to the court's sound discretion, reviewable only for abuse. Goldston v. Wright, 257 N.C. 279, 125 S.E.2d 462; Pruitt v. Ray, 230 N.C. 322, 52 S.E.2d 876.

No error.