Bailey v. Hayman , 220 N.C. 402 ( 1941 )

BaeNHIll, J.

Upon tbe issues submitted tbe court instructed tbe jury as follows :

“These issues go band in band and I see no reason to talk about them severally and every reason to talk about them, one in conjunction with tbe other.” “Tbe burden of these two issues is upon tbe plaintiffs to satisfy you that tbe defendant is not sole seized of this property, and to satisfy you that they are tenants in common with tbe defendant in this tract of land contended for in this action along with tbe plaintiffs.”

While tbe second issue, under tbe pleadings and evidence, is tbe one that should be submitted to tbe jury, and while tbe submission of two issues may have resulted in some inexactness of phrase relative to tbe burden of proof, it would seem that tbe charge, taken in its entirety upon tbe subject, should not be held for reversible error.

Be that as it may, tbe charge contains inadvertent expressions of opinion which entitle tbe plaintiff to a new trial. C. S., 564; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; Carruthers v. R. R., 215 N. C., 615, 2 S. E. (2d), 878.

Tbe manner of stating tbe contentions of tbe parties, if indicative of tbe court’s opinion, is within the prohibition of tbe statute. S. v. Hart, 186 N. C., 582, 120 S. E., 345. Tbe following expressions appear in tbe recitation of tbe defendant’s contention: “Tbe defendant contends that . . . it is humanly impossible, as a matter of common knowledge, that any portion of the lands . . . should have been known in 1925 as the Richardson tract . . . that this conclusion is induced, if not compelled, by the circumstances surrounding the execution of the Markham deed . . . also unequivocally appears from the evidence offered both by the plaintiffs and the defendant . . . the evidence discloses no earthly reason why any portion . . ' . should have been known . . . as the Richardson tract . . . the evidence whereby it is sought to locate the so-called Richardson tract . . . proceeds wholly, or almost wholly, from interested parties . . . being either plaintiffs or close relatives of the plaintiffs . . . Defendant contends that Adam Etheridge is the arch conspirator in this scheme to wrest from him lands he justly owns . . . that Adam’s actions speak louder than Adam’s words, and that this suit . . . represents no more nor less than another attempt on his part to wrest from Hattie Dough, or the defendant as her successor in title, lands to which neither he nor his coplaintiffs have any just or even colorable title . . . that it makes no difference whether the "Warren A. Dough referred to in these deeds was or was not the husband of Abi Dough, since from the mere fact that he was her husband, it would not follow that her heirs and his heirs were the same — there being no evidence to show in this case that either Abi Dough or Warren A. Dough, her husband, was not married more than once.”

These expressions, in their warmth and vigor, though stated in the form of contentions, were calculated to impress the jury with the strength of the defendant’s position and the weakness of the plaintiffs’. “There must be no indication of the judge’s opinion upon the facts, to the hurt of either party, either directly or indirectly, by words or conduct.” Bank v. McArthur, 168 N. C., 48, 84 S. E., 39. It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone and tenor of the trial. The statute forbids an intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury. “Every suitor is entitled by the law to have his cause considered with the ‘cold neutrality of the impartial judge’ and the equally unbiased mind of a properly instructed jury.” Withers v. Lane, 144 N. C., 184, 56 S. E., 855.

For the reasons stated there must be a

New trial.