Castle v. BH YATES COMPANY, INC.

197 S.E.2d 611 (1973)

18 N.C. App. 632

Leroy CASTLE v. B. H. YATES COMPANY, INC.

No. 7314DC382.

Court of Appeals of North Carolina.

July 11, 1973.

*613 Powe, Porter, Alphin & Whichard, P. A., by J. G. Billings, Durham, for plaintiff.

Haywood, Denny & Miller, by John C. Martin, Durham, for defendant.

BROCK, Judge.

Plaintiff assigns as error the trial court's refusal of his motion to be permitted to reopen his case in order to offer additional evidence. Plaintiff proposed to recall B. H. Yates, president of defendant company, for the purpose of inquiring into the amount of commissions defendant company had received on certain orders taken by plaintiff. This motion was made at the close of all the evidence. The court denied this motion after noting that Mr. Yates was present in court and capable of walking to witness stand.

The trial court, in its discretion, may allow a plaintiff or defendant to introduce further evidence after they have rested. Rose & Day, Inc. v. Cleary, 14 N.C. App. 125, 187 S.E.2d 359. Plaintiff had ample opportunity, before he rested, to offer any evidence he wished to offer in support of his claim. He has failed to demonstrate any abuse of discretion in the trial court's denial of his motion. This assignment of error is overruled.

Plaintiff assigns as error the court's allowance of defendant's motion for an involuntary dismissal at the close of all the evidence. Plaintiff contends that the allowance of this motion at the end of all the evidence is inconsistent with the denial of an identical motion at the close of plaintiff's evidence and so constitutes reversible error. We find no merit in this contention.

In this case, defendant aptly made a motion for involuntary dismissal at the close of plaintiff's evidence. The motion was denied at that time. At the close of all the evidence, defendant sought to renew such motion for involuntary dismissal on the grounds that upon the facts and the law plaintiff had shown no right to relief. The trial court allowed this motion and then entered a judgment on the merits, making findings of fact and conclusions of law pursuant to G.S. § 1A-1, Rule 52 of the North Carolina Rules of Civil Procedure.

Rule 41(b) of the Rules of Civil Procedure does not provide for a motion for involuntary dismissal made at the close of all the evidence. The fact that defendant made such a motion which is not sanctioned under the rules and that the trial judge inadvertently allowed it, in no way prejudiced plaintiff. The trial judge thereafter entered a judgment on the merits pursuant to Rule 52. Plaintiff has not excepted to any of the findings of fact or conclusions of law contained in that judgment.

Affirmed.

HEDRICK and VAUGHN, JJ., concur.