Braswell v. Purser , 16 N.C. App. 14 ( 1972 )

190 S.E.2d 857 (1972)

Herman Flake BRASWELL, Individually, and Clyde M. Huntley, Individually and also as Bishop and Elder of the Shiloh True Light Church of Christ, Respectively and the Shiloh True Light Church of Christ
v.
James Rommie PURSER et al.
James Rommie PURSER, Individually, and as Elder of the Shiloh True Light Church of Christ, Robert L. Watson, Individually, and as Deacon of the Shiloh True Light Church of Christ on Behalf of the Shiloh True Light Church of Christ and the Members Thereof
v.
Herman Flake BRASWELL et al.

No. 7226DC464.

Court of Appeals of North Carolina.

August 30, 1972.

James J. Caldwell, Charlotte, for plaintiff appellants.

Bailey & Davis by Douglas A. Brackett, Charlotte, for defendant appellees.

BRITT, Judge.

Neither of the numerous assignments of error is based on the introduction or exclusion of evidence. No doubt the lack of exceptions to the evidence is attributable to the fact that appellant Braswell, without prior legal experience, chose to represent himself. There being no assignments of error concerning the introduction or exclusion of evidence brought forward all the evidence is deemed to be competent. The competency of evidence is not presented when there is no objection or exception to its admission and such evidence is properly considered by the court even though the evidence is incompetent and should have been excluded had objection been made. Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895 (1951); Virginia Truck Growers Manufacturing Corp. v. Moore County Mutual Exchange, 213 N.C. 658, 197 S.E. 196 (1938). Where exceptions are taken they must be brought forward and assigned as error or they are deemed abandoned. Iredell County v. Crawford, 262 N.C. 720, 138 S.E.2d 539 (1964); Cline v. Cline, 6 N.C.App. 523, 170 S.E.2d 645 (1969).

Twelve of appellants' sixteen assignments of error relate to exceptions to the court's charge to the jury. For purpose of discussion similar portions of assignments of error will be considered together.

Appellants contend in assignments of error 1, 2, 4, and 15 that the court erred in failing to define certain words, phrases or terms. It is the duty of the court to charge the law applicable to the substantive facts of the case without special request, Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); however, where the court adequately charges on all substantive features of a case it will not be error to fail to give instructions on subordinate features of the case, since the party desiring such instruction or greater elaboration is under a duty to request it. Koutsis v. Waddel, 10 N.C.App. 731, 179 S.E.2d 797 (1971).

The words and terms alleged to be insufficiently defined or necessary to be defined are "institutional church," "connectional church," "congregational church" and "conference."

Two types of church government are generally recognized, congregational and connectional. In 45 Am.Jur., Religious Societies, § 4, p. 725, we find: "Under some systems each church or religious society is an independent body, with a congregational form of government, not subject to the control of any higher ecclesiastical judicature, but a law unto itself, and self-governing in its religious functions. Under other systems a local church is but a member of a larger and more important religious organization, and is under its government and control, and the voluntary act of joining the general denominational organization subjects the local church to its rules and regulations." We think the terms "institutional church" and "connectional church" are synonymous.

In its charge the court spelled out what is meant by a "connectional church," that such a church is a member of a conference or similar higher body and could be subject to a person appointed or elected by the higher body. The court then gave a definition of "congregational church" stating in essence that such a church is independent and its affairs are governed by the congregation, i. e., its members. The word "conference" was defined by analogy as being a higher organizational body than the individual church. We think the definition of terms was sufficient under the evidence in this case. Western Conference of Original Free Will Baptists of North Carolina v. Creech et al., 256 N.C. 128, 123 S.E.2d 619 (1962). The failure of the court to define the terms in the precise manner desired by appellants was not error, particularly when no requests for specific instructions were submitted.

Appellants contend in assignments of error 1, 2, 3, 4, and 5 that the court erred in failing to state the contentions of appellants to the jury. The trial court is not required to state the contentions of the parties. In Re Will of Wilson, 258 N.C. 310, 128 S.E.2d 601 (1962). But if the court undertakes to state the contentions of one party upon a particular aspect of the case, it is incumbent upon the court to give the contentions of the adverse party. Key v. Merritt-Holland Welding Supplies, 273 N.C. 609, 160 S.E.2d 687 (1968). In this case the court carefully gave the contentions of each party when contentions of either were given thus complying with the rule. We perceive no error in the failure of the court, absent a request to do so, to state appellants' contentions as to the law of usages, customs and practices of the True Light Church, as to who constituted the conference, as to the authority of appellant Braswell, as to why the church was not congregationally governed and as to the invalidity of the election. After reviewing the charge we hold that it accurately reflects the essential features of the case and that in the absence of a request for further instructions or in apt time asking the court to give further or different contentions, the charge as to contentions is sufficient. Peterson v. McManus, 210 N.C. 822, 185 S.E. 462 (1936).

Appellants next contend in assignments of error 10, 14 and 15 that the court erred in the manner in which it instructed the jury. Assignments of error 10 and 14 deal with the court's failing to instruct the jury that if they believed that there were numerous societies, that it was the custom and practice of the church to have conference meetings with representatives from the various societies with one representative designated as head elder and recognized as the head of the church, whether designated or not, then the first issue should be answered yes. We find no merit in the assignments and hold that the instructions given on the first issue were sufficient, absent a request for further instructions. Assignment of error 15 alleges error in not instructing the jury that a society may be congregational as to election of local officers but connectional as far as election of conference officers are involved. Again, we think the portion of the charge explaining "connectional" and "congregational" was sufficient absent a request for special instructions. The court adequately charged the law on every material aspect of the case arising on the evidence and applied the law fairly to the various factual situations presented by the evidence, therefore, the charge was sufficient and will not be held error for failure of the court to give instructions on subordinate features of the case, since it is the duty of a party desiring greater elaboration to tender a request therefore. 7 Strong, N.C.Index 2d, Trial, § 33, p. 329.

Appellants contend in assignments of error 2, 3 and 9 that the court erred in failing to give peremptory instructions as to issues 1, 2 and 3, contending that the jury should have been instructed to answer the first three issues yes. They contend that all the evidence was conclusive on those three issues. This contention is without merit.

The jury answered the first issue no and the second and third issues were unanswered. As to the first three issues Braswell was plaintiff and as such the burden of proof rested on him. It is settled law that a peremptory instruction in favor of the party upon whom rests the burden of proof is proper when there is no conflict in the evidence and all the evidence tends to support the party's right to relief. Flintall v. Charlotte Liberty Mutual Insurance Co., 259 N.C. 666, 131 S.E.2d 312 (1963). But a peremptory instruction for plaintiff is error when different inferences can be drawn from the facts admitted or established, or when the evidence is conflicting upon the issue. Gouldin v. Inter-Ocean Insurance Co., 248 N.C. 161, 102 S.E.2d 846 (1958); Perry v. First Citizens Nat. Bank & Trust Co., 226 N.C. 667, 40 S.E.2d 116 (1946). A careful review of the evidence reveals that there was conflicting evidence as to all three issues and thus the right to any peremptory instruction is negated. As to the first issue appellants' own evidence, the minutes of the 1920-24 Conference of the True Light Church, provides on pages 35-37 as follows:

"The government of the True Light Church is congregational ruled (sic) by a two-third (sic) majority in matters of discipline. . . . (a)nd further we would say when a community of True Lights increase to a sufficient number to justify it, they should organize by appointing one of their influential members of good report as Elder, to look after the spiritual welfare of that particular society."

As to the second issue the record is replete with testimony that no such position as Chief Elder or Chief Bishop exists, thereby raising a question for the jury. As to the third issue appellants' own evidence once again prohibits a peremptory instruction. The above quoted segment from the 1920-24 conference minutes indicates each society "appoints" an elder to lead that particular society. Therefore, the evidence being in conflict as to all three issues the court was correct in not giving peremptory instructions as to those issues.

Appellants' assignments of error 6, 8, 11, 12 and 13 are not brought forward and argued in their brief as required by Rule 28 of the Rules of Practice in the North Carolina Court of Appeals, therefore, they are deemed to be abandoned. Jackson v. Collins, 9 N.C.App. 548, 176 S.E.2d 878 (1970).

Appellants contend in assignment of error 5 that the court erred in allowing the jury on the question of the election of Purser as Elder at Shiloh to consider one of two elections to be valid. There is sufficient evidence to support the submission of this issue to the jury. It was a question of fact as to what would constitute a duly elected elder by the church (society) and the jury found that such an election occurred at one of two elections. It is not necessary in determining the rights of the parties to determine at which election Purser was duly elected. The assignment of error is overruled.

Appellants contend in assignment of error 7 that the court erred in failing at the close of all the evidence to direct a verdict in favor of plaintiff Braswell in the first case and in failing to nonsuit the plaintiffs Purser, et al, in the second case. A careful review of the record discloses that appellants failed to move for a directed verdict or for nonsuit at the close of the evidence; they cannot raise this issue for the first time on appeal. 7 Strong, N.C. Index 2d, Trial, § 20, pp. 291, 292. In addition is has been held that the court cannot direct a verdict in favor of the party having the burden of proof. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971).

Appellants contend "(t)he court erred in expressing an opinion through comments in those incidents too numerous to set out in this Assignment of Error, but which are based upon plaintiffs' Exceptions Nos." 2 through 50. The assignment sets forth the pages of the record on which the exceptions appear. Appellants then restate that the instances and comments are too numerous to set out but bring forward four instances that are supported by reason and argument. Where one assignment of error is based on separate exceptions and attempts to present several separate questions of law, it is ineffectual as a broadside assignment. Hines v. Frink, 257 N.C. 723, 127 S.E.2d 509 (1962). The assignment must show within itself the question sought to be presented and a mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient. In Re Will of Adams, 268 N.C. 565, 151 S.E.2d 59 (1966). We consider only the instances brought forward and argued.

On Pages 109-110 of the record appears a discussion between Braswell, Purser's attorney and the court which occurred during the course of Braswell's lengthy examination of Purser. Braswell stated: "I asked him if this doesn't verify that if the congregation refused to accept what the Conference Body presents to them that the Conference Body is clear of their blood, and that puts them under condemnation?" The court sustained an objection to the question and stated: "You're asking him for some interpretation of some scripture . . . Now, you may later on, read in your argument to the jury and give your interpretation of it, but he can't do that . . . His conclusions about it, I think, at this point, is incompetent because he hasn't been qualified as an ecclesiastical scholar, and another thing, I don't think he can testify to it if he was a scholar because you get into doctrinal matters which the court has no jurisdiction over."

We do not think the court expressed an opinion "whether a fact is fully or sufficiently proved" in violation of G.S. 1A-1, Rule 51(a). We think the court was merely stating an opinion as to the admissibility of the evidence and we agree with the conclusion. The legal or temporal tribunals of the State have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114 (1954).

Appellants contend that it was error for the court to refer to the Shiloh Church as "this man's church at Shiloh." They contend "this man's" refers to Purser and indicated that the court believed Purser was entitled to the church. If the remark is viewed in context there is no definite referral to Purser and even if Purser were being referred to in the statement it would seem to indicate only Purser's membership in the church and certainly did not intimate that Purser's rights to Shiloh were any greater than appellants'.

Finally, appellants contend the court expressed an opinion in stating that the court had heard enough as to Braswell's being carried out of the church, that it was not important in the decision and that a lot of time was being wasted on that point. Appellants contend this is the very reason an injunction was sought. We agree that this was the reason but it in no way could aid the jury in answering the issues submitted and particularly in determining whether Shiloh was a connectional or congregational church or society. The prohibition of an expression of opinion relates only to facts which are pertinent to the issues to be decided by the jury, and it is incumbent upon the appellant to show prejudice. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968); Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912 (1960). We hold that appellants have failed to show any prejudice resulting from the remarks of the trial judge. The remarks did not constitute an expression of opinion, but were merely conscientious attempts to afford Braswell, acting by his own choice without counsel, every opportunity to present his evidence but at the same time exercise the court's responsibility to control and regulate the conduct of the trial.

We have carefully considered all of the assignments of error properly brought forward and presented but finding them without merit, they are all overruled.

No error.

CAMPBELL, J., concurs.

MALLARD, C. J., dissents.