Mattox v. Huneycutt

164 S.E.2d 28 (1968)

3 N.C. App. 63

Eddie Lamar MATTOX, a Minor, by his Next Friend, Mrs. Laura Richardson Mattox v. Alberta Francis HUNEYCUTT.

No. 6826SC411.

Court of Appeals of North Carolina.

November 13, 1968.

Warren C. Stack and James L. Cole, Charlotte, for plaintiff appellant.

Carpenter, Webb & Golding by Fred C. Meekins, Charlotte, for defendant appellee.

MALLARD, Chief Judge.

The only assignments of error brought forward by plaintiff and discussed in his brief relate to the charge of the court.

"The purposes of the court's charge to the jury are the clarification of the issues, the elimination of extraneous matters, and the declaration and explanation of the law arising on the evidence in the case. * * * It is the duty of the the court to charge the law applicable to the substantive features of the case arising on the evidence, without special *29 request, and to apply the law to the various factual situations presented by the conflicting evidence. * * * It is not essential that the court charge the jury as to the law in connection with each contention of the parties; the better practice is for the court to give (1) a summary of the evidence, (2) the contentions of the parties, and (3) an explanation of the law arising on the evidence." 7 Strong, N.C.Index 2d, Trial, § 32, pp. 322, 323.

The question presented on this appeal is whether the trial judge charged in accordance with the above stated principles.

The court's charge with respect to the measure of damages, when taken as a whole, appears to be in conformity with the decisions of the Supreme Court of North Carolina.

One other question raised by the plaintiff relates to the charge of the trial court relative to the use of the Mortuary Tables (G.S. § 8-46) introduced into evidence. The plaintiff admits that there does not appear to be error in the charge of the judge relating to G.S. § 8-46 and states that it is correct. However, the plaintiff asserts that the manner in which this portion of the charge was given "either encouraged or permitted the jury to depreciate the plaintiff's claim," and as a result prejudicial error is present. G.S. § 1-180 requires the judge to "declare and explain the law arising on the evidence given in the case." In the instant case, we think the judge has properly done this. If the plaintiff had wished further instructions relating to any other features of the case, plaintiff should have requested them. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 754; Hennis Freight Lines v. Burlington Mills and Brooks v. Burlington Mills, 246 N.C. 143, 97 S.E.2d 850.

We have carefully considered the charge in its entirety and are of the opinion that there is no prejudicial error therein.

The jury found from the facts presented what they thought to be fair damages to be awarded to plaintiff. This court will not substitute its judgment for that of the triers of the facts. The judgment of the trial court is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.