Weeks Motor Co. v. Daniels

BRITT, Judge.

Defendants’ only assignment of error relates to whether the trial court erred in granting plaintiff’s motion for a directed verdict at the close of all the evidence. The assignment is well taken.

In Cutts v. Casey, 278 N.C. 390, 417-418, 180 S.E. 2d 297, 311-312 (1971), Justice Sharp in discussing whether under G.S. 1A-1, Rule 50, the trial judge can direct a verdict in favor of the party having the burden of proof, said:

“As a consequence of our constitutional and statutory provisions this Court has consistently held that the judge cannot direct a verdict upon any controverted issue in favor of the party having the burden of proof ‘even though the evidence is uncontradicted.’ (Citations.) Justice Rodman stated the rule succinctly in Chisholm v. Hall, 255 N.C. 374, 376-77, 121 S.E. 2d 726, 728: ‘When all the evidence offered suffices, if true, to establish the controverted fact, the court may give a peremptory instruction — that is, if the jury find the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner. Defendant’s denial of an alleged fact raises an issue as to its existence even though he offers no evidence tending to contradict that offered by plaintiff. (Emphasis ours.)

‘A peremptory instruction does not deprive the jury of its right to reject the evidence because of lack of faith in its credibility. Such an instruction differs from a directed verdict as that term is used by us. A verdict may never be directed when the facts are in dispute. The judge may direct a verdict only when the isstce submitted presents a question of law based on admitted facts.’ (Italics ours; citations omitted.)”

In the instant ease defendants denied material allegations of plaintiff. They denied the alleged default, denied that plaintiff repossessed the automobile under rights contained in the security agreement, denied due advertisement of the sale in compliance with state laiw, denied sale of the automobile to the highest bidder and denied that a balance was owing under the agreement. Having denied these alleged facts, defendants raised an issue as to their existence. The facts being in dispute the case became one for jury determination and the court erred in directing a verdict in plaintiff’s favor.

The trial court properly dismissed defendants’ counterclaim but the judgment in favor of plaintiff on its claim is

Reversed.

Judges Campbell and Morris concur.