Jackson v. Collins

176 S.E.2d 878 (1970)

Cecil JACKSON, a minor, by his Next Friend, Sam Jackson, Plaintiff, v. Roland M. COLLINS, Jerry C. Allen, a minor, and Wilton H. Allen, Defendants.

No. 7016SC575.

Court of Appeals of North Carolina.

October 21, 1970.

*879 Williford, Person & Canady, by N. H. Person, Fayetteville, for plaintiff appellee.

Johnson, Hedgpeth, Biggs & Campbell, by John Wishart Campbell, Lumberton, for defendants appellants.

HEDRICK, Judge.

The appellant first assigns as error, based on specific exceptions in the record, the court's rulings with respect to the admissibility of certain testimony. "In a trial before the judge, sitting without a jury, `the ordinary rules as to the competency of evidence applied in a trial before a jury *880 are to some extent relaxed, for the reason that the judge with knowledge of the law is able to eliminate from the testimony he hears that which is immaterial and incompetent, and consider that only which tends properly to prove the facts to be found.'" Stansbury, N.C. Evidence 2d, § 4a. Nevertheless, we have carefully examined each exception in the record as it relates to this assignment of error and conclude that the court did not commit prejudicial error in any of the challenged rulings.

The appellant next assigns as error the court's denial of his motion for a directed verdict made at the close of the plaintiff's evidence and renewed at the close of all the evidence, and the court's denial of his motion for judgment notwithstanding the verdict. In the record the appellant did not except to the findings of fact made by the court. Where, as here, the parties have waived trial by jury, and the court's findings of fact are not challenged by exceptions in the record, the findings of fact made by the judge are presumed to be supported by the evidence and are binding on appeal. Tanner v. Ervin, 250 N.C. 602, 109 S.E.2d 460 (1959); Taney v. Brown, 262 N.C. 438, 137 S.E.2d 827 (1964).

The defendant contends that the court failed to comply with G.S. § 1A-1, Rule 52(a) (1), Rules of Civil Procedure, which reads as follows:

"(1) In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."

This contention is without merit. The parties stipulated that the court could answer specific issues as to negligence and damage. In Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639 (1951), our Supreme Court held that the rule requiring that the findings of fact be stated separately from the conclusions of law was satisfied when the separation was made in such a manner as to render the findings of fact readily distinguishable from the conclusions of law. In the instant case Judge Brewer made detailed findings of fact and stated that his answers to the issues were based thereon. Obviously the court's conclusions of law are contained in the answers to the issues, and are readily distinguishable from the findings of fact.

The exception to the judgment raises the question of whether the findings of fact support the conclusions of law, and whether the judgment is proper in form. Taney v. Brown, supra; Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

We hold that the findings of fact support the conclusions of law contained in the answers to the issues and that the judgment is proper in form.

The record contains other exceptions which are not brought forward and argued in the appellant's brief. These exceptions are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

We conclude that the defendant had a fair trial in the superior court free from prejudicial error.

No error.

MALLARD, C. J., concurs.

BROCK, J., concurs in the result reached.