Hunt v. Davis

Annotate this Case

102 S.E.2d 405 (1958)

248 N.C. 69

Mary HUNT v. Ivan Bryant DAVIS, Polly McCullen Davis, and The Wilson Daily Times, Inc., a North Carolina corporation.

No. 251.

Supreme Court of North Carolina.

March 19, 1958.

*406 George H. Windsor, Greensboro, for plaintiff appellant.

Gardner, Connor & Lee, Wilson, for defendants Ivan Bryant Davis and Polly McCullen Davis, appellees.

Taylor, Allen & Warren, Goldsboro, for defendant The Wilson Daily Times, Inc., appellee.

PER CURIAM.

Defendants Davis moved to dismiss the appeal for failure to comply with our rules prescribing the method of preserving exceptions and presenting assignments of error.

Plaintiff assigns error in this manner:

"Assignment # 1: Exceptions 1 (R p 18), 2 (R p 23), 3 (R pp 23-24), 4 (R p 25), 5, 6 (R pp 26-27), 7, 8, 9 (R p 27). "Errors relate to the undue and improper limitations and restrictions imposed by the Court on plaintiff in examination of witnesses and exclusion of offered evidence going to the negligence of the defendant Ivan Davis." "Assignment # 6, Exceptions 26 (R p 58), 27, 28 (R pp 59-60), 29, 30 (R p 61), 31 (R p 62), 32, 33 (R *407 p 63), 34, 35 (R pp 64-65), 36, 37 (R pp 65-66), 38 (R p 66), 39, 40 (R pp 67-68): "Errors relate to the charge of the Court pertaining to Issue No. 1. The Court did not properly explain the law, burden of proof. The Court did not explain the applicability of the law of negligence to the evidence before the Court, as required by G.S. 1-180."

Rules covering appellate procedure in this Court appear as Appendix 1 in Volume 4A of the General Statutes. They are also published in 221 N.C. at page 544 et seq. The rules are mandatory, and when appellant fails to comply, he may anticipate a dismissal. Tillis v. Calvine Cotton Mills, 244 N.C. 587, 94 S.E.2d 600; Baker v. Clayton, 202 N.C. 741, 164 S.E. 233; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; Calvert v. Carstarphen, 133 N.C. 25, 45 S.E. 353.

Under the rules, asserted error must be based on an appropriate exception, and the errors relied on must be properly assigned. See Rules 19 and 21. We have repeatedly said that these rules require the assignment of error to show what question is intended to be presented for consideration without the necessity of paging through the record to find the asserted error. A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; Armstrong v. Howard, 244 N.C. 598, 94 S.E.2d 594; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Buxton White Seed Co. v. Robert T. Cochran & Co., 203 N.C. 844, 165 S.E. 354; Greene v. Dishman, 202 N.C. 811, 164 S.E. 342. These cases demonstrate the inadequacy of plaintiff's assignments of error as they relate to her appeal from that portion of the judgment denying plaintiff's right to recover from the individual defendants. The motion to dismiss is allowed.

Plaintiff's exception and assignment of error as it relates to the judgment of nonsuit is in proper form and complies with our rules. It is, however, not necessary to consider an exception and assignment of error when it is apparent that the error, if any, is harmless. Liability of the corporate defendant is predicated on the doctrine of respondeat superior. It has been determined that the asserted agent was not negligent, and plaintiff is bound by that adjudication by the dismissal of her appeal. Since liability of the master or employer can only rest on a finding that the agent or employee was negligent, no harm can come to plaintiff by adjudging the evidence insufficient to establish the asserted agency.

As to the individual defendants the appeal is dismissed..

As to the corporate defendant the judgment is affirmed.