Electro Lift, Inc. v. Miller Equipment Company , 270 N.C. 433 ( 1967 )

154 S.E.2d 465 (1967) 270 N.C. 433

ELECTRO LIFT, INC.
v.
MILLER EQUIPMENT COMPANY.

No. 619.

Supreme Court of North Carolina.

May 24, 1967.

Graham M. Carlton, Salisbury, for defendant appellant.

Benjamin D. McCubbins and George L. Burke, Jr., Salisbury, for plaintiff appellee.

PLESS, Justice.

The record contains twenty-six exceptions to the exclusion of evidence the defendant sought to introduce. Typical of these exceptions is the following:

"EXCEPTION #13 (R p 32):

"Q Mr. Miller, what was the contract price that you had for the construction of the kiln at Gnadenhutten?

"(Witness would have answered: ``$368,563.37 was the total contract price.') (Witness' answer included apart from Court's supervision.)"

Each of the other exceptions to the excluded evidence is in that form. It is an invariable rule that where the court sustains an objection that it will not be considered unless the proposed answer is supplied in the record. In Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 14, 86 S.E.2d 745, 755, it is said:

"(T)he record fails to show what the testimony would have been if the witness had been permitted to answer the question. It is elemental that the exclusion of testimony cannot be held prejudicial on appeal unless the appellant shows what the witness would have testified if permitted to do so. North Carolina Highway Comm. v. Black, 239 N.C. 198, 79 S.E.2d 778; Goeckel v. Stokely, 236 N.C. 604, 73 S.E.2d 618."

The recognized method for supplying an excluded answer is to excuse the jury at the close of the witness' testimony and then have him, in the presence of the court, give the proposed answer. Another custom permits the answer to be supplied at a later time, when this is done by order of the court or by agreement of the parties. From the court's notation, it is apparent that none of these methods were used; and the statement that the witness would have answered, etc., could be based upon the attorney's information or deduction, or, of course, could have been made by the witness. The court was liberal to the defendant in letting the record show what the defendant contended the answer would have been, but we cannot give consideration to parts of the record furnished "apart from the court's supervision," and each of the exceptions based on similar questions and answers is without merit.

Upon the evidence admitted by the court, it appears that the defendant ordered a hoist and trolley of specified requirements at a total price of $4950. Upon delivery, the defendant complained about the trolley. From the record, it appears that the plaintiff was liberal in accepting the return of the trolley and allowing full credit (even including unearned commissions) to the defendant.

The defendant kept the hoist and has used it regularly for some four years. It is entirely within the specifications of the original order. But now that the plaintiff seeks to recover the agreed price for an article that complies with the original contract, the defendant says that it should not pay for it because another article, which it has returned for full credit, did not measure up. The defendant is on debatable grounds as to the latter claim, but there can be no debate that it has kept and used the hoist which it ordered.

The trial court was apparently of the opinion that the plaintiff was entitled to what amounted to a peremptory instruction, but the one given at the conclusion of the charge does not comply with the rules stated in City of Shelby v. Lackey, 236 N.C. 369, 72 S.E.2d 757, 758, in which Denny, J., later C. J., speaking for the Court, said:

"A directed instruction in favor of the party having the burden of proof is error. McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Haywood v. [Home] Insurance Co., 218 N.C. 736, 12 S.E.2d 221; Globe Yarn Mills v. Armstrong, 191 N.C. 125, 131 S.E. 416; House v. Seaboard Air Line R. R., 131 N.C. 103, 42 S.E. 553; Manufacturing Co. v. Carolina Cent. R. R., 128 N.C. 280, 38 S.E. 894; Cox v. Norfolk & C. R. R., 123 N.C. 604, 31 S.E. 848. And when a peremptory instruction is permissible, conditioned upon the jury finding the facts to be as all the testimony tends to show, the court must leave it to the jury to determine the credibility of the testimony. McIntosh's North Carolina Practice & Procedure, 632; Bank v. School Committee of Durham, 121 N.C. 107, 28 S.E. 134; Boutten v. Wellington & P. R. R., 128 N.C. 337, 38 S.E. 920; Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871."

The rule is well stated in Strong's N.C. Index, Trial, § 31, that the correct form of a peremptory instruction is that the jury should answer the issue in the affirmative if the jury should find from the greater weight of the evidence the facts to be as all the evidence tends to show, and that if the jury does not so find they should answer the issue in the negative. The court must leave it to the jury to decide the issue.

The instruction here fails to offer the alternative that if the jury fails to find the facts as all the evidence in the case tends to show that it then be the duty of the jury to render a verdict in favor of the defendant.

In view of the condition of the record, we do not pass upon the correctness of the judge's opinion that the plaintiff was entitled to a peremptory instruction. If he were, the defendant was entitled to have it in proper form. Whether a peremptory charge is appropriate at a later trial will be determined by the evidence then adduced. The defendant is entitled to a

New trial.