McNeill v. . McGirt

142 S.E. 217, 195 N.C. 370, 1928 N.C. LEXIS 94

Opinion

Stacy, C. J.

The action of the trial court in withdrawing from the jury’s consideration the issues originally submitted on the second cause of action, must be held for error under the circumstances here disclosed. It appears from an inspection of the record that the contention of the defendants was submitted principally, if not wholly, upon these issues. Hence the court, in withdrawing them without further instruction, inadvertently took from the jury, certainly for all practical purposes, the defendants’ entire defense. This was error. Gaskins v. Mitchell, 194 N. C., 275, 139 S. E., 435.

The remaining exceptions are not considered, though it is observed that the decisions in Busbee v. Creech, 192 N. C., 499, 135 S. E., 326, and Sykes v. Everett, 167 N. C., 600, 83 S. E., 585, may become pertinent on another bearing. As to this, however, we express no opinion in advance of the evidence.

New trial.