Russell v. Hamlett

135 S.E.2d 547 (1964)

261 N.C. 603

Beulah RUSSELL v. Jonah HAMLETT. Moses E. RUSSELL, Jr. v. Jonah HAMLETT.

No. 377.

Supreme Court of North Carolina.

April 8, 1964.

*548 Charles B. Wood, Roxboro, for plaintiff appellants.

Haywood & Denny, by George W. Miller, Jr., and Egbert L. Haywood, Durham, for defendant appellee.

PER CURIAM.

This is the second appeal in these two cases consolidated for trial. On the first appeal each plaintiff appealed from a separate judgment of compulsory nonsuit. We reversed the judgments below and remanded the consolidated cases for a jury trial. 259 N.C. 273, 130 S.E.2d 395.

On the former appeal a summary of the evidence considered in the light most *549 favorable to plaintiffs is set forth. The evidence in the instant case is substantially similar to the evidence introduced in the first trial, and it would be supererogatory to set it out here. On the first appeal we were solely concerned with a judgment of compulsory nonsuit, and it was not necessary to set forth a summary of plaintiffs' and defendant's evidence tending to show negligence on feme plaintiff's part in the operation of her husband's automobile. This evidence tends to show the following, inter alia: Before the collision feme plaintiff drank some egg nog which had "a whole lot" of Four Roses whisky poured in it; that Melvin Hamlett, a witness for plaintiff, testified, "I reckon you might say Beulah's car was about 500 feet from the wreckage when we first saw it"; that feme plaintiff was driving east and there was visibility about a quarter to a half mile ahead of her on the highway to the wrecked automobiles in front of her.

The evidence is sufficient to support the verdict in each case. A careful examination of the assignments of error discloses no new question requiring extended discussion, and no prejudicial error has been made to appear. Feme plaintiff was driving her husband's family purpose automobile and was his agent at the time of the wreck, and, consequently, her contributory negligence as found by the jury in the male plaintiff's case bars any recovery by him. Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200; 38 Am.Jur., Negligence, sec. 236. The jury under a charge without prejudicial error resolved the issues of fact against each plaintiff.

The verdict and judgment in feme plaintiff's case will be upheld.

In the male plaintiff's case the judgment by inadvertence sets forth the first three issues of the verdict in feme plaintiff's case, and not the verdict in his case, and then decrees that he shall recover nothing from defendant. It is thoroughly settled in law that in all cases tried by a jury the judgment must be supported by and conform to the verdict in all substantial particulars. Hutchins v. Davis, 230 N.C. 67, 52 S.E.2d 210. The verdict in male plaintiff's case will be upheld, and defendant, at the next ensuing session of Person Superior Court after this opinion is certified down, is authorized to make a motion to correct the judgment in his case by inserting therein the verdict rendered in his case, so as to make the judgment speak the truth. State Trust Co. v. Toms, 244 N.C. 645, 94 S.E.2d 806; State v. Cannon, 244 N.C. 399, 94 S.E.2d 339; Strong's N.C. Index, Vol. 3, Judgments, sec. 6.

The result is this:

On feme plaintiff's appeal

No error.

On male plaintiff's appeal no error in the trial, but

Remanded for proper judgment.