Smith v. Capital Coca-Cola Bottling Co.

19 S.E.2d 626, 221 N.C. 202, 1942 N.C. LEXIS 429

• Court: Supreme Court of North Carolina
• Decided: April 15, 1942
• Status: Published

Opinion

Stact, C. J.

One member of the Court, Schenck, J., not sitting, and the remaining six being evenly divided in opinion whether error appears in respect of the motion to nonsuit and the prayer for a directed verdict, these rulings are permitted to stand, accordant with the usual practice in such cases, without becoming precedents, and hence no recital of the evidence is deemed appropriate. Cole v. R. R., 211 N. C., 591, 191 S. E., 353.

There was error, however, in permitting the plaintiff to offer his complaint in evidence which entitles the defendant to a new trial. Lupton v. Day, 211 N. C., 443, 190 S. E., 722. The material allegations of the complaint were denied in the answer, and its admission in evidence was an inadvertence.

Plaintiff suggests an amendment to the record in this respect, pointing out that error seems apparent — the date of the summons patently so— and motion is lodged to this effect. The case having been settled by agreement is subject to correction only in like manner. Gorham v. Ins. Co., 215 N. C., 195, 1 S. E. (2d), 569. The transcript imports verity, and we are hound by it. S. v. Dee, 214 N. C., 509, 199 S. E., 730.

The result is another hearing.

New trial.