In Re Will of Wilder

171 S.E. 611, 205 N.C. 431, 1933 N.C. LEXIS 580

• Court: Supreme Court of North Carolina
• Decided: November 22, 1933
• Status: Published

Opinion

Stacy, C. J.

Two errors are assigned, one based upon tbe exclusion of evidence and tbe other upon tbe court’s refusal to give an instruction as prayed.

Tbe record does not show wbat tbe answers to tbe interrogatories propounded to tbe witness would have been, hence we cannot say tbe exclusion of tbe evidence was hurtful or erroneous. Where tbe record .shows exceptions to unanswered questions, without more, tbe exceptions will not be considered on appeal. Miller v. Bottling Co., 204 N. C., 608, 169 S. E., 194. We cannot assume that the answers w'onld have been favorable to the caveator. Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175.

The burden is on appellant to show error, and he must make it appear plainly, as the presumption is against him. Frazier v. R. R., 202 N. C., 11, 161 S. E., 689; Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; In re Ross, 182 N. C., 477, 109 S. E., 365.

The instruction requested, while not given in the exact language of the prayer, was substantially given by the court in language equally as explicit and clear. This was a sufficient compliance with the caveator’s request. Michaux v. Rubber Co., 190 N. C., 617, 130 S. E., 306; McIntosh Prac. & Proc., 636.

“The judge is not required to give an instruction in the very words used by counsel in the request for it, even if the instruction be a proper one. If he gives it substantially, and does not, by any change of language, weaken its force, it is a sufficient compliance with the law”— Walker, J., in Graves v. Jackson, 150 N. C., 383, 64 S. E., 128. See, also, to like effect, Shaw v. Pub. Service Corp., 168 N. C., 611, 84 S. E., 1010.

A careful perusal of the record leaves us with the impression that the case has been tried in substantial conformity to the decisions on the subject, and that the verdict and judgment should be upheld.

No error.