Don's Plumbing Co. v. Union Supply Co. of Durham, Inc.

MALLARD, Chief Judge. The movants did not state the rule number under which they were proceeding in any of the motions. See Rule 6 of the “General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure,” as adopted by the Supreme Court with effective- date of 1 July 1970. In one place in the record it is stated that a directed verdict was entered on the negligence issue against McDonald while in another place it is stated that summary judgment was allowed in favor of plaintiff as to the negligence of McDonald. All of this indicates the necessity for the rule requiring the movants to state the number of the rule under which the motion is made. Supply Company contends that the trial judge committed error in charging the jury concerning the, evidence of the plaintiff as follows: . [665] “That he (McDonald) went to the corporate defendants and inquired of the corporate — I say corporate defendants — went to the corporate defendant and inquired of it, if it would be all right to burn that pile of debris; and that the corporate defendant agreed that the pile of debris might be burned.” Although there is an inference that Mr. Ira Handsel was an employee of Supply Company, there is no admission and no evidence that Mr. Handsel was authorized and acted as agent for Supply Company when he told McDonald that it would “be all right to burn any of this' stuff on the outside, inside the fence.” Neither is there any direct evidence that the “I. S. Handsel” who verified the defendant’s answer as Vice President is the same person that McDonald referred to as “Mr. Ira Handsel.” It was error for the trial judge to draw the conclusion that Mr. Ira Handsel was the agent of the corporate defendant and emphasize it by implying in the above-quoted portion of the charge that what McDonald said to Mr. Handsel was said to the “corporate defendant.” Defendant Supply Company also contends that the trial judge committed prejudicial error in charging the jury on the greater weight of the evidence, as follows: . “The term, greater weight of the evidence, does not refer to the volume of testimony you have heard. It does not refer to the number of witnesses that you have heard. The term, greater weight of the ■ evidence, refers to the quality or convincing force of the evidence. The greater weight of the evidence is suck evidence as when compared with that opposed to it has more convincing force.” (Emphasis added.) In some civil cases the intensity of proof is by evidence that is clear, strong and convincing. See Stansbury, N. C. Evidence 2d, § 213. However, the intensity of proof in the ordinary civil action (which is applicable here) is by the greater weight or preponderance of the evidence or to the satisfaction of the jury. “A jury is not justified in finding any fact unless the evidence is sufficient to satisfy their minds of its truth, or, what is equivalent and practically the same thing, creates in their minds a belief that the fact alleged is true.” Perry v. Insurance [666] Co., 137 N.C. 402, 49 S.E. 889 (1905). In Stansbury, N. C. Evidence 2d, § 212, p. 545, there appears the following: “If there is some evidence in the plaintiff’s favor and none in the defendant’s favor, surely the former has the greater weight; still it is settled that in this situation it is for the jury to say which party shall win. There would seem to be great merit in the suggestion that what is meant by the formula is that the jury should be satisfied of the greater probability of the proposition advanced by the party having the burden of persuasion — i.e., that it is more probably true than not.” The error in the instruction complained of appears in the last sentence. In this case there was no conflicting evidence or no evidence “opposed to” the evidence offered by the plaintiff; therefore, the jury could, under this instruction, have inferred that when “some evidence” was introduced, such constituted the greater weight of the evidence. We think that this, was prejudicial error. Defendant Supply Company has other assignments of error to the charge and to the admission of evidence which we do not deem necessary to discuss. The defendant Supply Company is entitled to a new trial. New trial. Judges Campbell and Hedrick concur.