McLamb v. Jones , 23 N.C. App. 670 ( 1974 )

209 S.E.2d 854 (1974) 23 N.C. App. 670

Johnny Michael McLAMB
v.
Charles JONES.

No. 7411SC740.

Court of Appeals of North Carolina.

November 20, 1974.

Bryan, Jones, Johnson, Hunter & Greene by Robert C. Bryan, Dunn, for plaintiff appellee.

Stewart & Hayes, P. A. by D. K. Stewart, Dunn, for defendant appellant.

MORRIS, Judge.

Defendant's first assignment of error relates to the denial of his motion for involuntary dismissal under Rule 41(b) of the Rules of Civil Procedure. While "a motion to dismiss under this rule is not properly available in cases being tried by jury", Hamm v. Texaco, Inc., 17 N.C.App. 451, 454, 194 S.E.2d 560, 562 (1973), in our discretion, plaintiff having made no objection to defendant's failure to state proper rule number, we have decided to treat defendant's motion as a motion for a directed verdict under Rule 50(a), which would have been the proper motion for defendant to make in this case to test the sufficiency of the plaintiff's evidence to get his case to the jury.

In support of his motion, defendant argues that plaintiff was upon the area in question without the permission of the owner and that if such facts are to be believed, then the owner or person in control of the premises owed to the plaintiff only the duty not to injure him willfully or wantonly. Defendant contends that nowhere in the record is there evidence that he willfully or wantonly caused injury to the plaintiff and, therefore, it was error to submit the case to the jury.

We recognize the well-settled principle that the standard of care owed by an owner or person in control of the premises to a trespasser is he "must not be willfully or wantonly injured". Bell v. Page, 271 N.C. 396, 399, 156 S.E.2d 711, 715 (1967); Dean v. Construction Co., 251 N.C. 581, 587, 111 S.E.2d 827 (1960). In examining the record, however, we are unable to find any evidence that the defendant was the owner or in control of the premises. To the contrary defendant's own evidence shows that his lease was solely for the Drag Strip, that he did not lease any of the road in question and that he owned no land in the area. Furthermore, there is no evidence that he had permission to go on the land where the accident occurred. Apparently, defendant was just as much a trespasser on the land as the plaintiff. In any event, plaintiff's trespass was against the owner of the property on which the accident occurred, not against the defendant. For this reason, we are of the opinion, and so hold, that defendant cannot rely on plaintiff's status as a trespasser in asserting that his standard of care was only that plaintiff not be willfully or wantonly injured.

Defendant's only other assignment of error relates to the trial judge's charge to the jury and may be dealt with summarily. Defendant maintains that the court was required to instruct the jury on the duty of care owed to a trespasser. This assignment of error presupposes defendant is entitled to the protection and defenses available to an owner of premises or a person in control of premises with respect to trespassers. As we have concluded that the defendant in this case does not have such rights, this assignment of error is overruled.

No error.

HEDRICK and BALEY, JJ., concur.