King v. Bass

160 S.E.2d 97 (1968)

273 N.C. 353

Roy L. KING, t & dba King's Furniture Company v. Adlay Augusta BASS and wife, Mary Jeanette P. Bass, Alexander Malpass, Sr. and Alexander Malpass, Jr.

No. 192.

Supreme Court of North Carolina.

March 20, 1968.

*98 Robert Calder, Wilmington, for defendants Malpass, appellants.

No Counsel Contra.

PER CURIAM.

Appellants' assignments of error include the following:

"1. The Court erred in failing to state anywhere in his charge to the jury that the burden of proof on all the issues was on the plaintiff. "2. The Court erred in failing to charge concerning the second issue submitted to the jury that the burden of proof was on the plaintiff and the intensity of proof required."

Plaintiff asserted the affirmative on all the issues presented, and the burden was on him to offer evidence in support of all essential and material elements of his cause of action. Bank of French Brood v. Catawba Construction Co., 203 N.C. 100, 164 S.E. 621.

This Court considered the duty of the trial judge to instruct on burden of proof in the case of Watt v. Crews, 261 N.C. 143, 134 S.E.2d 199, wherein Denny, C. J., speaking for the Court, stated:

"`In Tippite v. Atlantic Coast Line R. R., 234 N.C. 641, 68 S.E.2d 285, this Court said: "G.S. § 1-180, as amended, requires that the judge `shall declare and explain the law arising on the evidence given in the case.' This places a duty upon the presiding judge to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. It is said that `"[t]he rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the courts. State v. Falkner, 182 N.C. (793), 798, 108 S.E. 756, and cases cited." Skyland Hosiery Co. v. [American Ry.] Express Co., 184 N.C. 478, 114 S.E. 823.' Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341, 344; Crain v. Hutchins, 226 N.C. 642, 39 S.E.2d 831."'"

The trial court failed to give instructions as to the burden of proof on any of the issues. This omission violates a substantial right of appellants and constitutes prejudicial error.

New Trial.