City of Shelby v. Lackey

72 S.E.2d 757 (1952)

236 N.C. 369

CITY OF SHELBY et al. v. LACKEY et al.

No. 311.

Supreme Court of North Carolina.

October 29, 1952.

*758 Falls & Falls, Shelby, for appellants.

Henry B. Edwards and A. A. Powell, Shelby, for appellees.

DENNY, Justice.

An examination of the complaint filed in this action fails to disclose that the additional parties plaintiff are in any way interested in the subject matter of the action, or that they are citizens of the City of Shelby, or property owners therein, or that they will be injuriously affected by the nonconforming use of the defendants' property for business purposes. Hence, we think, in the absence of appropriate pleadings in this respect, the demurrer should have been sustained as to these additional parties plaintiff. The ruling, however, insofar as it may have applied to a misjoinder of parties, will be upheld.

The defendants except to the refusal of the court to sustain their motion for judgment as of nonsuit. The exception is overruled as to the original plaintiffs.

The defendants also except to and assign as error the charge of the court which was as follows: "Gentlemen of the Jury: There is but one issue submitted to youHave the defendants in violation of the Zoning Ordinance of the City of Shelby used for business purposes the portion of the lot described in the complaint on the North side of West Marion Street, and designated on the plat Plaintiffs' Exhibit 5 `Used Car Lot', enclosed by a fence? If you find from the evidence the facts to be as all of the evidence tends to show, you will answer that issue yes, and with your permission I will answer it for you. Answer: `Yes.'"

The exception is well taken and must be sustained. A directed instruction in favor of the party having the burden *759 of proof is error. McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Haywood v. Insurance Co., 218 N.C. 736, 12 S.E.2d 221; Globe Yarn Mills v. Armstrong, 191 N.C. 125, 131 S.E. 416; House v. Seaboard Air Line R. R., 131 N.C. 103, 42 S.E. 553; Manufacturing Co. v. Carolina Cent. R. R., 128 N.C. 280, 38 S.E. 894; Cox v. Norfolk & C. R. R., 123 N.C. 604, 31 S.E. 848. And when a peremptory instruction is permissible, conditioned upon the jury finding the facts to be as all the testimony tends to show, the court must leave it to the jury to determine the credibility of the testimony. McIntosh's North Carolina Practice & Procedure, 632; Bank v. School Committee of Durham, 121 N.C. 107, 28 S.E. 134; Boutten v. Wellington & P. R. R., 128 N.C. 337, 38 S.E. 920; Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871. This the court below inadvertently failed to do.

The defendants are entitled to a new trial and it is so ordered.

New trial.