Kaczala v. Richardson

VAUGHN, Judge.

In their brief appellees state that the question now before thig court is whether, on the earlier appeal, the court intended to and did in fact grant plaintiff and third party defendant, appellant in that case a partial new trial — limited to appellant’s claims.

The opinion of this court on that appeal concludes as follows:

“We deem it unnecessary to discuss the other assignments of error brought forward in appellants’ brief as the points raised may not occur upon a retrial of this action.

For the reasons stated, appellants are awarded a

New trial.” Kaczala v. Richardson, 18 N.C. App. 446, 448, 197 S.E. 2d 21, 23.

Although this court may, in a proper case, direct a partial new trial, we will not intentionally do so without specifically designating the issues which are to be retried. Certainly we did not intend to do so in the present case. The questions of negligence, contributory negligence and proximate cause are too closely interwoven between all the parties for us to say that the errors discussed, as well as those assigned and not discussed, did not affect all of them. Indeed, where a jury has found:plaintiff contributorily negligent, the cases will be rare when we will order a new trial on that issue without requiring reconsideration of the issue of the defendant’s negligence as a proximate cause of the injury. See Huffman v. Ingold, 181 N.C. 426, 107 S.E. 453. If defendant is to be entitled to have the question of his negligence determined at the new trial, then the questions arising on his counterclaim cannot be said to have been finally- determined against him.

As the Supreme Court has said:

“We think the Court erred in thus restricting the. new trial. Our order, as we have said, was -general in- its terms, and extended to all the matters involved in the case. We were not asked to limit the new trial to any particular question, and did not do so. This Court, upon application, can grant a general or a partial new trial, as it may' See fit under all the circumstances; but when a new trial is granted, nothing more being said, it means a new trial of the whole case — of all the issues, and not merely of one of them. . .” Lumber Co. v. Branch, 158 N.C. 251, 73 S.E. 164. .

Our qrder for a new trial on the earlier appeal vacated the verdict on both issues answered by the jury.

For the reasons stated the judgment is reversed and the case is remanded for entry of judgment in conformity with the verdict returned by the jury.

Reversed and remanded.

Judge Parker concurs. Judge Britt dissents.