Whiteside v. Ralston Purina Co., 242 N.C. 591 (1955)

Sept. 21, 1955 · Supreme Court of North Carolina

242 N.C. 591

ELIZABETH WHITESIDE v. RALSTON PURINA COMPANY and W. JACK FAIRCLOTH.

(Filed 21 September, 1955.)

Appeal and Error § 20—

Where the ease on appeal, settled by agreement of counsel, contains the evidence in question and answer form, rather than in narrative form as required by Rule 19 (4), Rules of Practice in the Supreme Court, the judgment will be affirmed and the appeal dismissed.

Winborne and Higgins, JJ., took no part in the consideration or decision of this case.

Appeal by plaintiff from Pless, J., at April-May Term, 1955, of HENDERSON.

Civil action to recover for sickness and death of plaintiff’s chickens, alleged to have been caused by the defendants’ negligence and breach of contract in using improper serum in inoculating the chickens to prevent Fowl Pox and New Castle Disease.

The defendants’ motion for judgment of nonsuit, made at the close of the plaintiff’s evidence, was allowed, and from judgment based on such ruling the plaintiff appeals, assigning errors.

Paul K. Barnwell for plaintiff, appellant.

Monroe M. Redden for defendants, appellees.

JOHNSON, J.

Practically all the evidence in the case is by question and answer, and not in narrative form as required by Rule 19 (4), Rules of Practice in the Supreme Court, 221 N.C. 544, p. 556.

This Rule provides that the evidence “shall be in narrative form, and not by question and answer, except that a question and answer, or a series of them, may be set out when the subj ect of a particular exception.” Here the instances in which the question and answer form is necessary to point up an exception are nebulous. The Rule further provides that “If the case is settled by agreement of counsel, or the statement of the appellant becomes the case on appeal, and the rule is not complied with, . . . the appeal will be dismissed.” Here the case was settled by agreement of counsel.

' The defendants’ motion to dismiss the appeal for failure to narrate the evidence will be allowed. It is so ordered. For the reasons stated in Anderson v. Heating Co., 238 N.C. 138, 76 S.E. 2d 458, the Court has not only found it necessary to adopt Rule 19 (4), but also to enforce it uniformly. The profession has been apprised of the mandatory character of the Rule in recent decisions of the Court. S. v. McNeill, 239 N.C. 679, 80 S.E. 2d 680; Laughinghouse v. Insurance Co., 239 N.C. 678, 80 S.E. 2d 457; S. v. Powell, 238 N.C. 550, 78 S.E. 2d 343; Anderson v. Heating Co., supra. See also Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

In accordance with our decisions, the judgment will be affirmed and the appeal dismissed.

Judgment affirmed; appeal dismissed.

WinboRNe and HiggiNS, JJ., took no part in the consideration or decision of this case.