Hamilton v. Henry

80 S.E.2d 485 (1954) 239 N.C. 664

HAMILTON
v.
HENRY.

No. 237.

Supreme Court of North Carolina.

March 17, 1954.

Doffermyre & Stewart, Salmon & Hooper, Dunn, for defendant-appellant.

Wilson & Johnson, Dunn, for plaintiff-appellee.

WINBORNE, Justice.

Appellant brings up for consideration several assignments of error based upon exceptions (1) to denial of his motions, aptly made, for judgment as of nonsuit, (2) to portions of the charge as given by the court to the jury, and (3) to argument of counsel. Careful consideration of them fails to show error for which judgment below should be disturbed.

(1) The evidence offered upon the trial in Superior Court, as shown in the case on appeal, is amply sufficient to take the case to the jury on the first issue, that is, as to the negligence of defendant, and to support the verdict of the jury in respect thereto.

And the evidence so offered, and so shown, fails to make out a case of contributory negligence against plaintiff as a matter of law. Indeed, taking the evidence in respect to conduct of plaintiff in the light most favorable to defendant, it may be fairly doubted that the evidence is sufficient to require the submission of the second issue, that is, as to contributory negligence of plaintiff.

But be that as it may, the jury has found upon the uncontroverted evidence offered, and fairly presented, that defendant was negligent, and that his negligence was the proximate cause of the personal injury and property damage of which complaint is made, and that plaintiff, by his own negligence, did not contribute thereto. This conclusion is so patent that discussion of applicable principle of law and citation of authority in support of it are deemed unnecessary.

(2) Assignments of error upon exceptions to portions of the charge as given by the trial judge to the jury are untenable. For taking the charge as a whole, that is, read contextually, prejudicial error is not indicated. The principles of law enunciated and applied are too familiar to require repetition of them.

(3) Lastly, assignments of error Numbers 4 and 11 are based on exceptions to the overruling of defendant's motion for withdrawal of juror, and for a new trial on account of statement of one of the attorneys for plaintiff in his argument to the jury, and to instructions in respect thereto in the course of the charge of the court.

The statement to which exception is directed is: "It's not a matter for the jury to worry about where the money comes from; let us worry about that, but I say that any defendant who can hire four lawyers must have some money somewhere, and I'll leave it to you where it's coming from".

Defendant objected, and made motion as above stated. Thereupon the court instructed the jury at some length to the effect that the remarks were of no concern to the jury, and should be dispelled from the minds of the jurors, concluding by saying: "You will please erase it from your minds and forget it was ever said."

And, again, the court, in the course of, and just before concluding the charge to the jury, gave these instructions: "One of the attorneys referred to sympathy for the defendant and how hard it would be on the defendant and his wife and four children to receive an adverse verdict. There is no evidence here before you that the defendant is married or that he has any children and that should not enter into your deliberation or enter your mind upon arriving at this verdict; it has nothing to do with it; you are not to decide this case upon sympathy; you are to decide it upon fairness to all parties, both the plaintiff and the defendant.

"(Then, too, one of the attorneys on the plaintiff's side said that you needn't worry where the money was coming from. That has nothing to do with the case and I charge you again to erase that from your minds and forget it as intelligent men, men of character and intelligence; that has nothing to do with the case and you must not consider it either in your minds or in your deliberations between yourselves.)"

[Defendant excepts to the foregoing portion of the charge in parenthesis.]

"Decide this case fairly and impartially and without sympathy."

Thus it would seem that the remarks of the attorney for plaintiff were invited by remarks of an attorney for defendant. Even so, it would seem the court took proper precaution.

"It is the duty of the judge to interfere, when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury. McLamb v. Wilmington & W. R. Co., 122 N.C. 862, 29 S.E. 894. See also McIntosh N. C. P. & P., page 621, where the author states that counsel may not `travel outside of the record' and inject into his argument facts of his own knowledge or other facts not included in the evidence. Perry v. Western North Carolina R. Co., 128 N.C. 471, 39 S.E. 27. When counsel does so, the court may interpose correction by checking the argument and restricting it within proper bounds, or he may correct it in his charge to the jury. See Annotations 86 A.L.R. 899, at page 901. On the other hand, while the conduct of a trial in the court below, including the argument of counsel, must be left largely to the control and discretion of the presiding judge, he, to be sure, as stated by Walker, J., in State v. Tyson, 133 N.C. 692, 45 S.E. 838, should be careful that nothing is said or done which would be calculated unduly to prejudice any party in the prosecution or defense of his case." State v. Howley, 220 N.C. 113, 16 S.E.2d 705, 709.

In the light of these principles applied to the situation before him, this Court is unable to conclude that the trial judge abused the discretion invested in him.

Hence, in the judgment on the verdict, after fair trial, we find

No error.