Chalmers v. Womack

152 S.E.2d 505 (1967)

269 N.C. 433

Robert CHALMERS, Louise C. Lowery, Bessie C. Walker, Amie C. Clark, Clara C. Clark, Mary C. Clark, Elizabeth C. Barnes and Fannie C. Caldwell v. Lillian Gertrude WOMACK.

No. 610.

Supreme Court of North Carolina.

February 3, 1967.

*506 M. O. Lee, Lillington, for plaintiffs.

Robert B. Morgan and Gerald Arnold, Lillington, for defendant.

BRANCH, Justice.

Plaintiffs' first assignment of error is that the court submitted insufficient and incorrect issues to the jury.

*507 The number, form and phraseology of the issues lie within the sound discretion of the trial court, and the issues will not be held for error if they are sufficiently comprehensive to resolve all factual controversies and to enable the court to render judgment fully determining the cause. Western Conference of Original Free Will Baptists v. Miles, 259 N.C. 1, 129 S.E.2d 600; Rudd v. Stewart, 255 N.C. 90, 120 S.E.2d 601; G.S. § 1-200.

The only issue for decision in order to determine the rights of the parties in this cause was the marital status of defendant and James Richard Chalmers at the time of his death. The issue submitted by the trial judge was sufficient to embrace all facts in dispute, for the parties to present every material phase of the case, and to enable judgment to be entered which fully determined the case. Objection to the issue submitted is therefore groundless.

Appellants also contend that the trial judge erred "for that the court failed to charge the jury in accordance with G.S. § 1-180 by explaining and declaring the law arising on the evidence." This assignment is broadside and untenable. It is insufficient in that it does not present error relied upon without the necessity of going beyond the assignment itself to learn what the question is. The portions of the charge objected to are not specifically set out. Creed v. Whitlock, 252 N.C. 336, 113 S.E.2d 421; State v. Corl, 250 N.C. 262, 108 S.E.2d 613; Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783, 797.

Plaintiffs' assignment of error that the court erred in failing to grant their motion to set aside the verdict as being against the greater weight of the evidence cannot be sustained. The issue was properly submitted to the jury. "`A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it. In such case the presumption of innocence and morality prevail over the presumption of the continuance of the first or former marriage.' * * (I)t is always for the jury where the demand is for an affirmative finding in favor of the party having the burden, even though the evidence may be uncontradicted. * * * Moreover, proof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon which property rights growing out of its validity must be based." Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871; Stewart v. Rogers, 260 N.C. 475, 133 S.E.2d 155.

Plaintiffs argue in their brief that the court abused its discretion in failing to set aside the verdict as being contrary to the court's instructions. The court charged the jury as follows:

"Gentlemen of the jury, if you believe the evidence in this case, then you would answer the First Issue `No.' That is to say, that if you believe what the witnesses have said about it, then you would find, it would be your duty to find that Lillian Gertrude Womack was not the lawful wedded wife of Richard Chalmers at the time he died, but it is within your province to believe all of the evidence, to believe none of the evidence, or to believe it in part and disbelieve it in part, as the case may be, as you see it in your own minds when come to consider and make up your verdict. "Therefore, Gentlemen of the jury, if you find from the evidence, and by its greater weight, that Lillian Gertrude Womack was married to Lee Womack in the year 1920 and that that marriage was never dissolved by divorce, and find that she is still the lawful wedded wife of Lee Womack, then you would answer, it would be your duty to answer this issue `No,' and that is to say, that she was not the lawful wedded wife of James Richard Chalmers. If, on the other hand, you disbelieve the evidence, you would answer it in the affirmative, that is to say, that she was, because there is a presumption of the validity of the second marriage."

*508 Since this was a matter for the jury, plaintiffs were not entitled to more than a peremptory instruction. The correct form of peremptory instruction is that the jury should answer the issue as specified if they should find from the greater weight of the evidence the facts to be as all the evidence tends to show. Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350; Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892. And the court should also charge that if the jury does not so find, they should answer the issue in the opposite manner. Roach v. Pyramid Life Insurance Co., 248 N.C. 699, 104 S.E.2d 823. Although the court's language was not in the exact words approved by this Court, it was substantially correct and does not constitute reversible error since the plaintiffs were not prejudiced, but to the contrary were benefited, by the variance from the Court's approved form. Brooks v. Orange Rice Mill Co., 182 N.C. 258, 108 S.E. 725.

In the instant case the trial judge left it to the jury to determine the issue submitted, and in the exercise of his discretion refused to set aside the verdict. A motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court, and its ruling thereon will not be reviewed in the absence of a showing of abuse. Wilkins v. Turlington, 266 N.C. 328, 145 S.E.2d 892.

Passing on this question in the case of Mangum v. Yow, 263 N.C. 525, 139 S.E.2d 537, this Court said: "History teaches that a jury can best settle factual controversies, and for that reason jury trials `ought to remain sacred and inviolable.' N.C. Constitution, Art. 1, § 19. * * * The jury had the responsibility of weighing all of the evidence * * * We find nothing in the record to show a failure by the jury to perform its duty. That being so, it follows the trial judge was not under a duty to set the verdict aside."

In the case now before us the jury heard the evidence, observed the demeanor of the witnesses, and answered the issue submitted. The trial judge had the same opportunity to observe the witnesses and hear the evidence as did the jury. We find no manifest abuse of discretion, and it therefore follows that the judge was under no duty to set the verdict aside.

Plaintiffs' assignment of error as to the court's failure to grant the motion for a directed verdict is not brought forward and discussed in their brief and is deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810.

For reasons stated, we find

No error.