Whitley v. Jones

78 S.E.2d 147 (1953)

238 N.C. 332

WHITLEY v. JONES et al.

No. 165.

Supreme Court of North Carolina.

October 14, 1953.

*150 Jones, Jones & Jones, Winton, for plaintiff, appellee.

J. Carlton Cherry, Ahoskie, and W. D. Boone, Winton, for defendants, appellants.

PARKER, Justice.

The jury answered the issue based on the allegations for unlawful removal of the boat: "No." The plaintiff did not appeal. The only assignments of error of the defendants as to this cause of action are Assignment of Error No. 1 as to the admission of evidence that the plaintiff remained in the hospital a little over two weeks and Assignment of Error No. 6 as to the overruling of their motion for nonsuit made at the close of all the evidence.

As to Assignment of Error No. 1. The defendants in their answer "admitted that the plaintiff at the time in question was confined in the McGuire Veterans Hospital in Richmond, Va." This Assignment of Error is without merit.

As to Assignment of Error No. 6. The General Assembly at its session in 1951 rewrote G.S. § 1-183, 1951 Session Laws, Ch. 1081. It is now the law under the 1951 statute that a motion for judgment of nonsuit may be made at the conclusion of all the evidence, irrespective of whether or not such a motion was made theretofore. If the motion is refused, and after the jury has rendered its verdict, the defendant on appeal can urge as ground for reversal the denial of his motion. The defendants in their brief on this Assignment of Error discuss almost entirely the cause of action based on negligence. A reading of the evidence *151 leads us to the conclusion that this cause of action should not have been nonsuited. Every unauthorized, and therefore unlawful, entry into the close of another, is a trespass entitling the aggrieved party at least to nominal damages. Lee v. Stewart, 218 N.C. 287, 10 S.E.2d 804.

In the trial of the cause of action for unlawful removal of the boat, we find

No error.

The defendants' Assignment of Error No. 6 is to the denial of their general motion for judgment of nonsuit. In passing upon this motion we must assume the evidence in behalf of the plaintiff to be true, and must extend to the plaintiff the benefit of every fair inference which can be reasonably drawn therefrom by the jury in favor of the plaintiff. In ruling on such a motion we do not pass on the credibility of the witnesses or the weight of the testimony. Contradictions in the plaintiff's evidence do not justify a nonsuit. We must resolve all conflicts of testimony in his favor. The defendants' evidence will not be considered unless favorable to the plaintiff, or not in conflict therewith, when it may be used to explain or make clear the plaintiff's evidence. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480.

"A nonsuit on the issue of negligence should not be allowed unless the evidence is free from material conflict and the only reasonable inference that can be drawn therefrom is that there was no negligence on the part of the defendant, or that his negligence was not the proximate cause of the injury." Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762, 765.

The sole allegation of negligence is this, the defendants "did negligently and carelessly and without any regard for the safety of the said property of the plaintiff break a large hole in the bottom of the said boat which caused it to sink after being launched in the said Chowan River, and did permit said boat to stay submerged in said river for two days before being raised from said water." That by reason of such unlawful acts the plaintiff has been damaged.

The evidence for the plaintiff shows these facts. The plaintiff in June 1951 had the bottom of his boat scraped and sanded, and 3 or 4 coats of lead put on its bottom, and 2 coats of green paint on top of that. There was no rotten place in the wood. Eugene Reid, who did the work, testified it was in good condition. On 12 June 1951 plaintiff was in a Veterans' Hospitalhe was there a little over two weeks. When he left for the hospital his boat was on the trailer in his back yard. It had been painted, and the hull of the boat was in perfect condition. Plaintiff saw Mrs. Jones after he found his boat damaged, and pulled up on the river bank, and told her that he understood she sent men to his house, and removed his boat from his back yard. She replied that she had sent the defendant Edwards and Sumner. Plaintiff told her "I feel like you should pay for it." Mrs. Jones replied "I fell like we will have to, but I shall let my husband take it up with you." Plaintiff's boat was on Mrs. Jones' trailer. Mrs. Jones' son had a boat in plaintiff's boathouse, which was leaking. The water in the boathouse was 5 or 6 feet deep. She wanted to take his boat out of the water on her trailer. Mrs. Jones called plaintiff's father saying she had to get her son's boat out of the water, and she could send some good men to take his son's boat to the river. He replied it would be up to her.

The defendant Edwards and Sumner got the trailer with plaintiff's boat on it from his back yard, carried it to Tuscarora Beach, and launched it in the Chowan River. They pulled it up the river about 1½ miles with the boat of Mrs. Jones' son, and put it in plaintiff's boathouse. The defendant Edwards testified that in pulling the boat up the river it took on about 8 *152 inches of water. Edwards and Sumner hooked the boat up in the boathouse and tied it with all the rope they could find to the rafters and the stringers. Plaintiff's brother found the boat in the boathouse partially sunk. There was a crack in the bottom and a hole big enough to stick two fingers in. "I would say the hole was pushed in from underneath." He carried the boat across the river, pulled it up on the shore, and tied it. There the plaintiff saw his boat. It had a crack about 3 feet long and "a right good sized holt punched up in it." Testing the plaintiff's evidence by the rules governing a motion for nonsuit, we think that the trial court was correct in submitting the case to the jury. The defendants' Assignment of Error No. 6 is overruled.

However, there is a fatal error in the charge of the court. The defendants' Assignment of Error No. 7 is to this part of the charge "if you find by the greater weight of the evidence that the plaintiff's boat was injured and damaged by the negligence of the defendants in the respects I have mentioned, it would be your duty to answer the second issue Yes." The second issue read, was the boat described in the complaint injured and damaged by the negligence of the defendants? This is the charge on proximate cause: "It is not sufficient to find the defendant negligent, but you must go further and find by the greater weight of the evidence that the negligence on their part was the proximate cause of the injury complained of; the dominant, efficient cause, the cause without which it would not have occurred; a cause which in continuous unbroken sequence brought about the injury complained of."

It is thoroughly established by our decisions that foreseeability of injury is a requisite of proximate cause. Davis v. Carolina Power & Light Co., 238 N.C. 106, 107, 76 S.E.2d 378 where the cases are cited.

"The law requires reasonable foresight, and, when the result complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor". Newell v. Darnell, 209 N.C. 254, 183 S.E. 374, which excerpt is quoted with approval in Roberson v. Carolina Taxi Service, Inc., 214 N.C. 624, 200 S.E. 363.

The court in its charge on proximate cause omitted to give the essential element of foreseeability of injury. This was "a casualty of the circuit" of the learned and experienced judge below, but nevertheless it requires a new trial. The defendants' Assignment of Error No. 7 is good, and on the cause of action for negligence a new trial must be ordered.

New trial.