Turner v. Turner , 9 N.C. App. 336 ( 1970 )

176 S.E.2d 24 (1970) 9 N.C. App. 336

Anna W. TURNER
v.
Joseph R. TURNER, Sr.

No. 7021DC380.

Court of Appeals of North Carolina.

August 26, 1970.

Pettyjohn & Dunn, by H. Glenn Pettyjohn, Winston-Salem, for plaintiff appellee.

White, Crumpler & Pfefferkorn, by Fred G. Crumpler, Jr., and Joe P. McCollum, Jr., Winston-Salem, for defendant appellant.

PARKER, Judge.

Appellant assigns as error the refusal of the trial court to allow his motion for a directed verdict made at the close of all the evidence. The record before us reveals that the appellant did not state the specific grounds for his motion. "A motion for a directed verdict shall state the specific grounds therefor." G.S. § 1A-1, Rule 50(a). This provision of the rule is mandatory. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769. (Decided 5 August 1970.) The appellant, having failed to state specific grounds for his motion, is not entitled upon this appeal to question the sufficiency of the evidence to support the verdict. Nevertheless, because the Rules of Civil Procedure are only so recently effective in this State, we have reviewed the record and are of opinion there was sufficient evidence to require submission to the jury of the issues which it answered in plaintiff's favor.

Appellant assigns as error portions of the court's charge to the jury. A number of appellant's exceptions to the charge have merit. As an example, on the issue as to whether defendant had offered such indignities to the person of plaintiff as to render her condition intolerable and her life burdensome, the court charged:

"To entitle the wife to the relief the indignities offered by the husband must be such as may be expected seriously to annoy a woman of ordinary sense and temperament, and must be repeated or continued so that it may appear to have been done wilfully and intentionally or at least consciously by the husband to the annoyance of the wife.

"Mrs. Turner has testified to certain indignities, and two of her children have also. It is up to you to decide the credibility of that testimony and whether or not she has sustained that burden."

A reading of the charge as a whole leads to the conclusion that the court failed to "declare and explain the law arising on the evidence given in the case" and failed to state the evidence "to the extent necessary to explain the application of the law thereto." This the court was required to do by G.S. § 1A-1, Rule 51(a) (formerly G.S. § 1-180).

"The chief purpose of a charge is to aid the jury to understand clearly the case and arrive at a correct verdict. For this reason, the Court has consistently held that G.S. 1-180 confers a substantial legal right, and imposes upon the trial judge a positive duty, and his failure to charge the law on the substantial features of the case arising on the evidence is prejudicial error, and this is true even without prayer for special instructions." Bullock v. Long, 256 N.C. 577, 587, 124 S.E.2d 716, 723.

In the case before us the jury was left to determine for itself, without adequate explanation from the court, what law arose on the evidence in the case and how that law should be applied to the evidence.

For the court's failure properly to instruct the jury as required by G.S. § 1A-1, Rule 51(a), defendant is entitled to a

New trial.

MALLARD, C. J., and HEDRICK, J., concur.