Ginsberg v. Leach, 111 N.C. 15 (1892)

Sept. 1892 · Supreme Court of North Carolina

111 N.C. 15

S. GINSBERG v. GEORGE T. LEACH.

Appeal — Trial.

The Supreme Court will not consider exceptions arising upon the trial of other issues, when one issue, decisive of the appellant’s right to recover, has been found against him by the jury.

Civil action for damages, commenced before a Justice of the Peace, and tried upon appeal at Fall Term, 1891, of Hyde Superior Court, Brown, J., presiding.

Mr. G. F. Warren, for plaintiff.

Mr. J. H. Small, for defendant.

ClaRK, J.:

The following issues were submitted to the jurj^:

1. Did the defendant unlawfully commit the trespasses and damages as alleged in the complaint?

2. What damage has the plaintiff sustained?

There weréno exceptions, other than to the charge and the refusal to give a prayer in the words asked. There was but one witness (Bishop) introduced by the plaintiff, and there was no testimony for the defendant. The Court instructed the jury that, if they believed the witness, to answer the first issue, “Yes.” The jury, on their return, responded to this issue, “No.” The Court then asked the jury if they had understood it to charge that, if the jury believed the witness, to answer the first issue, “Yes.” A juror arose and stated that the jurors had understood the Court so to charge.

The instruction of the Court, as to the first issue, was all the plaintiff could possibly have asked. There was no evidence that the defendant ejected plaintiff, “molliter manus,” but if the witness was to be believed, he did so violently and roughly. The jury having on the first issue returned that they did not believe the witness, it becomes' immaterial to consider the correctness of the instructions applicable’to the second issue. The Court will not deal with abstract propositions of law.

No error.