American Personnel, Inc. v. Harbolick , 16 N.C. App. 107 ( 1972 )

VAUGHN, Judge.

In jury trials in Nortli Carolina the motion for nonsuit has been replaced by the motion for a directed verdict. G.S. 1A-1, Rule 50(a). “The motion for a directed verdict presents substantially the same question formerly presented by the motion for nonsuit, that is, whether the evidence considered in the light most favorable to the claimant will justify a verdict in his favor.” Cutts v. Casey, 278 N.C. 390, 411, 180 S.E. 2d 297.

As to granting a directed verdict in favor of Wheat on the issue of whether Harbolick was employed by them for a period of 90 days or more, we first observe that the burden of proof on this issue rested upon the defendant Harbolick. It was he who raised the issue in his answer and third party complaint. The word “employ” is defined:

“la: to make use of. . . b: to use or occupy (as time) advantageously. . . c: to use or engage the services of . . . also: to provide with a job that pays wages or a salary or with a means of earning a living. . . d: to devote to or direct toward a particular activity or person. . . e: occupy, busy . . . p. 743. Webster’s Third New International Dictionary (1968).

Harbolick’s evidence, considered in the light most favorable to him, was insufficient to permit a finding that Harbo-lick was “employed” by J. C. Wheat and Co., Inc., for anything in excess of 72 or 73 days. The judgment granting a directed verdict in favor of third party defendant J. C. Wheat and Company, Inc., is affirmed.

We now consider the assignments of error directed to entry of a directed verdict in favor of plaintiff on the second issue. Although Rule 50(a) provides that all parties may move for directed verdict, it is generally true that the court cannot direct a verdict in favor of a party having the burden of proof. Cutts v. Casey, supra. Here, however, in view of the facts which were stipulated before trial and admitted by defendant at trial, the second issue presented only a question of law for the court.

The issue presented the question of whether the phrase “I will accept a fee paid position only” added to the printed form by Harbolick had the effect of relieving Harbolick of any obligation to the plaintiff for the stipulated fee in the event Harbolick left the employment secured for him by the plaintiff. The parties have referred to this phrase as an alteration to the contract, but this is misleading. The contract was the entire document as written when it was signed on 6 June 1969. The parties have stipulated that this was the contract which controls their relationship.

“It is settled law that where the terms of a written instrument or contract are explicit, the court determines their effect by declaring their legal meaning.” Howland v. Stitzer, 240 N.C. 689, 696, 84 S.E. 2d 167.

Section A (4) of the contract between American and Harbo-lick speaks explicitly to the situation admitted to exist in this case. Harbolick accepted a fee paid position. He then left that employment. Section A (4) of the contract states that under those conditions, American’s “. . . fee shall be the full amount under the schedule below, even though the employer has paid all or part of my fee.” The parties have stipulated that the fee paid by Wheat to American has been refunded by American.

The facts as stipulated and admitted by defendant Harbo-lick presented only a question of law. It was, therefore, proper for the court to direct a verdict in favor of plaintiff.

Affirmed.

Judges Parker and Graham concur.