Summey v. Cauthen , 283 N.C. 640 ( 1973 )

197 S.E.2d 549 (1973) 283 N.C. 640

Robert F. SUMMEY, Jr.
v.
Hazel Alexander CAUTHEN, Jr., Defendant et al.

No. 78.

Supreme Court of North Carolina.

July 12, 1973.

Frank Patton Cooke, Gastonia, for plaintiff.

Hollowell, Stott & Hollowell and Mullen, Holland & Harrell by Grady B. Stott, Gastonia, for Hazel Alexander Cauthen, Jr., and Victor Carroll Cauthen.

Carpenter, Golding, Crews & Meekins by James P. Crews, Charlotte, for Plywood Sales Co., Inc.

LAKE, Justice.

There was no error in the denial of the motions of the defendants Cauthen, at the conclusion of all the evidence, for a directed verdict in their favor on Issues 2 and 5. The question raised by such a motion is whether there is evidence sufficient to go to the jury. This is substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit. Younts v. Insurance Co., 281 N. C. 582, 189 S.E.2d 137; Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441; Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297; Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396. In passing upon such a motion, the court must consider the evidence in the light most favorable to the non-movant. Investment Properties v. Allen, supra. That is, the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor. Younts v. Insurance Co., supra; Investment Properties v. Allen, supra; Adler v. Insurance Co., 280 N.C. 146, 185 S.E.2d 144; Phillips' Supplement to McIntosh, North Carolina Practice and Procedure, 2d Ed., § 1488.15(1) (2).

So viewed, the evidence is sufficient to show that Victor Cauthen, the driver of the automobile, was familiar with the road at the scene of the collision, that though the speed limit was 45 miles per hour he rounded the curve at a speed in excess of 60 miles per hour, that upon rounding the curve he could have seen the truck giving a signal for a left turn and slowly moving across the center line in the course of such turn 300 feet in front of him, and that when he applied his brakes, his tires smoked and left heavy skid marks on the surface of the road 93 feet before the impact. If true, as for the purpose of this motion must be assumed, this is ample evidence to support the finding by the jury that Victor Cauthen, and so Hazel Alexander Cauthen, Jr., whose agent he was, was negligent, that such negligence was one of the proximate causes of the collision and resulting injury to the plaintiff and that such negligence contributed to the injuries of Victor Cauthen. Day v. Davis, 268 N. C. 643, 151 S.E.2d 556; Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48; Raper v. Byrum, 265 N.C. 269, 144 S.E.2d 38; Bridges v. Jackson, 255 N.C. 333, 121 S.E.2d 542; Lemons v. Vaughn, 255 N.C. 186, 120 S.E.2d 527; 1 Strong, N.C.Index 2d, Automobiles, § 58. Thus, there was ample evidence to require the submission to the jury of Issues 2 and 5.

"The propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as that of a motion for a directed verdict." Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Law Review 1; Phillips' Supplement to McIntosh, North Carolina Practice and Procedure, 2d Ed., § 1488.35. Thus, in passing on a motion for judgment n. o. v., the court must view the evidence in the light most favorable to the non-movant. Investment Properties v. Allen, supra. The motion for judgment n. o. v. is that judgment be entered in accordance with the movant's earlier motion for a directed verdict, notwithstanding the contrary verdict actually returned by the jury. Rule 50(b), Rules of Civil Procedure, G.S. Chapter 1A. Consequently, the court below erred in entering judgment for Hazel Alexander Cauthen, Jr., and Victor Cauthen in diregard of the jury's verdict on Issues 2 and 5.

As permitted by Rule 50(c), the Cauthens coupled with their motion for judgment n. o. v. an alternative motion for a new trial "on the grounds that the evidence is insufficient to justify the jury verdict and the verdict is contrary to law." The Superior Court granted this motion conditionally "as to the second and fifth issues" in the event that its judgment n. o. v. be vacated or reversed on appeal, stating as its ground for so doing "that the evidence is insufficient to justify the verdict on issues two and five and the verdict is contrary to law." In such a situation, as Dean Phillips has said in his supplement to McIntosh, North Carolina Practice and Procedure, 2d Ed., § 1488.45:

"This is a final judgment. The Appellate Court may reverse the grant of judgment n. o. v. If it does this and nothing more, the new trial proceeds upon remand. But the Appellate Court may also reverse on the grant of new trial, in which event the judgment of the verdict winner must be reinstated."

As above shown, our review of the record leads us to the conclusion that the trial judge was in error in his view that the evidence is insufficient to justify the verdict of the jury on Issues 2 and 5 and we find no error in the record prejudicial to either Hazel Alexander Cauthen, Jr., or to Victor Cauthen. We, therefore, vacate the order of the Superior Court granting a new trial on these issues.

We are thus brought to the question of the judgment to be entered on the verdict returned by the jury. The jury having found in Issue No. 2 that the plaintiff was injured and damaged by the negligence of the agent of Hazel Alexander Cauthen, Jr., as alleged in the complaint, the agency being admitted, and having found in answer to Issue No. 5 that Victor Cauthen by his own negligence contributed to his own injuries, as alleged in the answer of Plywood, it follows, as a matter of law, that neither of the Cauthens is entitled to recover damages from Plywood, and the answers of the jury to Issues 6 and 7 are surplusage which must be stricken and disregarded in rendering judgment. Swann v. Bigelow, 243 N.C. 285, 90 S.E.2d 396; Strong, N.C.Index 2d, Trial, § 42.

We, therefore, reverse the judgment of the Superior Court and remand this matter to it for the entry of a judgment, in accordance with the verdict of the jury upon Issues 1 through 5, inclusive; that is, that the plaintiff have and recover of the defendants Plywood Sales Company, Inc., and Hazel Alexander Cauthen, Jr., $30,000, and that Hazel Alexander Cauthen, Jr., and Victor Cauthen have and recover nothing of the defendant Plywood Sales Company, Inc., on account of their damages and injuries alleged in their respective cross-complaints.

Reversed.