Haywood v. Home Insurance Co.

12 S.E.2d 221, 218 N.C. 736, 1940 N.C. LEXIS 80

Opinion

DeviN, J.

Defendant’s principal assignment of error relates to the judge’s charge. With reference to the first and second issues the court instructed the jury as follows: “I direct you to answer the first issue ‘Yes,’ and the second issue ‘Yes.’ ” The exception to this instruction must be sustained. The defendant’s denial placed the burden on the plaintiff to prove his case by the greater weight of the evidence, and it was error for the trial judge to direct a verdict in favor of the plaintiff without leaving it to the jury to determine the credibility of the testimony. McIntosh Practice & Pro., 632.

“A familiar principle of practice forbids a directed instruction in favor of the party upon whom rests the burden of proof.” Yarn Mills v. Armstrong, 191 N. C., 125, 131 S. E., 416; Evans v. Ins. Co., 213 N. C., 539, 196 S. E., 814; House v. R. R., 131 N. C., 103, 42 S. E., 553: Cox v. R. R.. 123 N. C., 604, 31 S. E., 848.

Defendant complains also of tbe trial judge’s failure in bis charge to put tbe burden of proof on tbe third issue on tbe plaintiff. The proper placing of tbe burden of proof is regarded as a substantial right. Arnold v. Trust Co., ante, 433.

For tbe errors pointed out there must be a

New trial.