City of Shelby v. Lackey

72 S.E.2d 757, 236 N.C. 369, 1952 N.C. LEXIS 555

Opinion

Denny, J.

An examination of tbe complaint filed in tbis action fails to disclose that tbe additional parties plaintiff are in any way interested in tbe subject matter of tbe action, or that they are citizens of tbe City of Shelby, or property owners therein, or that they will be injuriously affected by tbe nonconforming use of tbe defendants’ property for business purposes. Hence, we think, in tbe absence of appropriate pleadings in tbis respect, tbe demurrer should have been sustained as to these additional parties plaintiff. Tbe ruling, however, in so far as it may have applied to a misjoinder of parties, will be upheld.

Tbe defendants except to tbe refusal of tbe court to sustain their motion for judgment as of nonsuit. Tbe exception is overruled as to tbe original plaintiffs.

Tbe defendants also except to and assign as error tbe charge of tbe court which was as follows : “Gentlemen oe ti-ie Juey : There is but one issue submitted to you — Have tbe defendants in violation of tbe Zoning Ordinance of tbe City of Shelby used for business purposes tbe portion of tbe lot described in tbe complaint on tbe North side of West Marion Street, and designated on tbe plat Plaintiffs’ Exhibit 5 ‘Used Car Lot,’ enclosed by a fence? If you find from tbe evidence tbe facts to be as all of tbe evidence tends to show, you will answer that issue yes, and with your permission I will answer it for you. Answer: ‘Yes.’ ”

Tbe exception is well taken and must be sustained. A directed instruction in favor of tbe party having tbe burden of proof is error. McCracken v. Clark, 235 N.C. 186, 69 S.E. 2d 184; Haywood v. Insurance Co., 218 N.C. 736, 12 S.E. 2d 221; Yarn Mills v. Armstrong, 191 N.C. 125, 131 S.E. 416; House v. R. R., 131 N.C. 103, 42 S.E. 553; Manufacturing Co. v. R. R., 128 N.C. 280, 38 S.E. 894; Cox v. R. R., 123 N.C. 604, 31 S.E. 848. And wben a peremptory instruction is permissible, conditioned upon tbe jury finding tbe facts to be as all tbe testimony tends to sbow, tbe court must leave it to tbe jury to determine tbe credibility of tbe testimony. McIntosh’s North Carolina Practice & Procedure, 632; Bank v. School Committee, 121 N.C. 107, 28 S.E. 134; Boutten v. R. R., 128 N.C. 337, 38 S.E. 920; Kearney v. Thomas, 225 N.C. 156, 33 S.E. 2d 871. This tbe court below inadvertently failed to do.

Tbe defendants are entitled to a new trial and it is so ordered.

New trial.