Perry v. Gibson, 249 N.C. 134 (1958)

Oct. 29, 1958 · Supreme Court of North Carolina

249 N.C. 134

SHERWOOD PERRY, Administrator of the Estate of JAMES K. PERRY, Deceased v. C. P. GIBSON.

(Filed 29 October, 1958.)

Appeal by plaintiff from Clark, J., February Civil Term 1958 of FRANKLIN.

This is a civil action to recover damages from the defendant for the alleged wrongful death of plaintiff’s intestate.

The defendant, a police officer of the Town of Franklinton, North Carolina, and constable for Franklinton Township, shot and killed •plaintiff’s intestate under the circumstances set out in a former appeal in this case and reported in 247 N.C. 212, 100 S.E. 2d 341, where a -new trial was granted.

In the trial below the case was again submitted to the jury on the following issues: 1. Did the defendant wrongfully and unlawfully assault and kill the plaintiff’s intestate, James K. Perry, as alleged in the complaint? 2. If so, what amount of damages, if any, is plaintiff entitled to recover of the defendant?

The jury answered the first issue “No.” The plaintiff appeals, assigning error.

Taylor & Mitchell for plaintiff.

Charles P. Green, Alton T. Cummings for defendant.

Per Curiam.

All of plaintiff’s assignments of error are directed either to the charge of the court as given or to the alleged failure of the court to charge on pertinent aspects of the case. However, a careful examination of these assignments of error leads us to the conclusion that no sufficient prejudicial error has been shown to justify another trial. Two juries have accepted the defendant’s version of the facts and rendered verdicts on the crucial issue in his favor.

In the trial below we find

No Error.

Parker, J., not sitting.