Nicholson v. Dean

148 S.E.2d 247 (1966) 267 N.C. 375

Julia Scarborough NICHOLSON, Plaintiff,
v.
Joseph Lawrence DEAN, Defendant, and
John Clayton SMITH, Executor of the Estate of Hartwell Vick Scarborough, Additional Defendant.

No. 531.

Supreme Court of North Carolina.

May 25, 1966.

Crisp, Twiggs & Wells, Raleigh, for additional defendant, appellant.

Teague, Johnson & Patterson, Raleigh, for original defendant, appellee.

BOBBITT, Justice.

Smith, Executor, is the appellant. Plaintiff did not appeal.

The court instructed the jury: "If you answer the first issue, ``No,' then that ends the lawsuit." Appellant assigns as error the quoted instruction. Appellant also assigns as error (a) the acceptance of the verdict and (b) the portion of the judgment denying his right to recover from Dean. These assignments, relating to the failure of the jury to answer the fourth issue, will be considered together.

Plaintiff, in her action to recover for personal injuries, and appellant, in his action to recover for Scarborough's injuries and death, assert, as the sole basis therefor, injuries resulting from said collision. Dean's answer admitted "plaintiff sustained certain injuries in the collision complained of." Under appellant's allegations, Scarborough's injuries resulted from the identical collision.

Plaintiff, in her complaint, and appellant, in his complaint, alleged the collision was caused by the actionable negligence of Dean. The specifications of the alleged negligence of Dean in the two complaints are identical. The right of plaintiff and of appellant to recover from Dean was determinable by the same factual considerations and legal principles except that plaintiff's right to recover would not be affected by Scarborough's negligence, if any. In view of the identity in pleadings and evidence, the court properly explained to the jury in substance that both plaintiff and appellant were entitled to recover from Dean if the collision was caused solely by the negligence of Dean. This specific instruction was given: "If you answer the first issue, ``Yes,' and the third issue, ``No,' you answer the fourth issue, ``Yes,' and proceed to the damage issue —fifth issue."

The answer, "No," to the first issue necessarily includes a finding that the collision was not caused by the negligence of Dean as alleged in the complaint. This finding, considered with the pleadings and evidence, establishes that the collision resulting in Scarborough's injuries and death was not caused by the negligence of Dean as alleged in appellant's complaint against Dean. Since this was the legal effect of the jury's answer, "No," to the first issue, the failure of the court, or of the jury in compliance with a direction from the court, to write in the answer, "No," to the fourth issue was not prejudicial to appellant. The legal effect of the jury's answer, "No," to the first issue is determinative.

"It is well settled that a verdict should be liberally and favorably construed with a view of sustaining it, if possible, and in ascertaining its meaning resort may be had to the pleadings, the evidence and the charge of the court." Guy v. Gould, 202 N.C. 727, 164 S.E. 120; Widenhouse v. Yow, 258 N.C. 599, 605, 129 S.E.2d 306, and cases cited. When the verdict herein is so construed, we are of opinion, and so hold, the answer, "No," to the first issue established that neither plaintiff nor appellant was entitled to recover from Dean. The quoted instruction advised the jury in substance this would be the legal effect of answering the first issue, "No." For the reasons stated, the verdict supports the judgment.

The remaining assignments of error discussed in appellant's brief relate to the charge. These assignments and the (purported) exceptions on which they are based do not comply with statutory requirements as to exceptions (G.S. § 1-282; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175) or with Rules 19(3) and 21 (Rules of Practice in the Supreme Court, 254 N.C. 783 et seq.). Even so, we have considered these assignments. Suffice to say, none discloses error considered of such prejudicial nature as to warrant a new trial.

No error.

MOORE, J., not sitting.