{ "id": 8556419, "name": "DON'S PLUMBING COMPANY, INC. v. UNION SUPPLY COMPANY OF DURHAM, INC., and DAVID McDONALD", "name_abbreviation": "Don's Plumbing Co. v. Union Supply Co. of Durham, Inc.", "decision_date": "1971-07-14", "docket_number": "No. 7114SC349", "first_page": "662", "last_page": "666", "citations": [ { "type": "official", "cite": "11 N.C. App. 662" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "49 S.E. 889", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "137 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656544 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/nc/137/0402-01" ] } ], "analysis": { "cardinality": 487, "char_count": 9501, "ocr_confidence": 0.53, "pagerank": { "raw": 7.910444093458357e-08, "percentile": 0.46126530929023274 }, "sha256": "ad7e045a02f9d4d6452d08a6fedcf8864f6d980f388cdac20653a914d87da721", "simhash": "1:db2261413805f8ed", "word_count": 1669 }, "last_updated": "2023-07-14T15:10:46.806740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Hedrick concur." ], "parties": [ "DON\u2019S PLUMBING COMPANY, INC. v. UNION SUPPLY COMPANY OF DURHAM, INC., and DAVID McDONALD" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nThe movants did not state the rule number under which they were proceeding in any of the motions. See Rule 6 of the \u201cGeneral Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure,\u201d as adopted by the Supreme Court with effective- date of 1 July 1970. In one place in the record it is stated that a directed verdict was entered on the negligence issue against McDonald while in another place it is stated that summary judgment was allowed in favor of plaintiff as to the negligence of McDonald. All of this indicates the necessity for the rule requiring the movants to state the number of the rule under which the motion is made.\nSupply Company contends that the trial judge committed error in charging the jury concerning the, evidence of the plaintiff as follows: .\n\u201cThat he (McDonald) went to the corporate defendants and inquired of the corporate \u2014 I say corporate defendants \u2014 went to the corporate defendant and inquired of it, if it would be all right to burn that pile of debris; and that the corporate defendant agreed that the pile of debris might be burned.\u201d\nAlthough there is an inference that Mr. Ira Handsel was an employee of Supply Company, there is no admission and no evidence that Mr. Handsel was authorized and acted as agent for Supply Company when he told McDonald that it would \u201cbe all right to burn any of this' stuff on the outside, inside the fence.\u201d Neither is there any direct evidence that the \u201cI. S. Handsel\u201d who verified the defendant\u2019s answer as Vice President is the same person that McDonald referred to as \u201cMr. Ira Handsel.\u201d It was error for the trial judge to draw the conclusion that Mr. Ira Handsel was the agent of the corporate defendant and emphasize it by implying in the above-quoted portion of the charge that what McDonald said to Mr. Handsel was said to the \u201ccorporate defendant.\u201d\nDefendant Supply Company also contends that the trial judge committed prejudicial error in charging the jury on the greater weight of the evidence, as follows: .\n\u201cThe term, greater weight of the evidence, does not refer to the volume of testimony you have heard. It does not refer to the number of witnesses that you have heard. The term, greater weight of the \u25a0 evidence, refers to the quality or convincing force of the evidence.\nThe greater weight of the evidence is suck evidence as when compared with that opposed to it has more convincing force.\u201d (Emphasis added.)\nIn some civil cases the intensity of proof is by evidence that is clear, strong and convincing. See Stansbury, N. C. Evidence 2d, \u00a7 213. However, the intensity of proof in the ordinary civil action (which is applicable here) is by the greater weight or preponderance of the evidence or to the satisfaction of the jury. \u201cA jury is not justified in finding any fact unless the evidence is sufficient to satisfy their minds of its truth, or, what is equivalent and practically the same thing, creates in their minds a belief that the fact alleged is true.\u201d Perry v. Insurance Co., 137 N.C. 402, 49 S.E. 889 (1905). In Stansbury, N. C. Evidence 2d, \u00a7 212, p. 545, there appears the following:\n\u201cIf there is some evidence in the plaintiff\u2019s favor and none in the defendant\u2019s favor, surely the former has the greater weight; still it is settled that in this situation it is for the jury to say which party shall win. There would seem to be great merit in the suggestion that what is meant by the formula is that the jury should be satisfied of the greater probability of the proposition advanced by the party having the burden of persuasion \u2014 i.e., that it is more probably true than not.\u201d\nThe error in the instruction complained of appears in the last sentence. In this case there was no conflicting evidence or no evidence \u201copposed to\u201d the evidence offered by the plaintiff; therefore, the jury could, under this instruction, have inferred that when \u201csome evidence\u201d was introduced, such constituted the greater weight of the evidence. We think that this, was prejudicial error.\nDefendant Supply Company has other assignments of error to the charge and to the admission of evidence which we do not deem necessary to discuss.\nThe defendant Supply Company is entitled to a new trial.\nNew trial.\nJudges Campbell and Hedrick concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Bryant, Litton, Bryant & Battle by James B. Maxwell for :plaintiff appellee.", "Cockman, Alvis & Aldridge by Jerry S. Alvis for defendant appellant." ], "corrections": "", "head_matter": "DON\u2019S PLUMBING COMPANY, INC. v. UNION SUPPLY COMPANY OF DURHAM, INC., and DAVID McDONALD\nNo. 7114SC349\n(Filed 14 July 1971)\n1. Trial \u00a7 33\u2014 instruction not supported by the evidence\nAn instruction which assumed, in the absence of supporting evidence, that a named person was acting as an agent of the corporate defendant when he approved the burning of debris on the company\u2019s property, held erroneous.\n2. Trial \u00a7 35\u2014 instruction on the greater weight of the evidence\nAn instruction that the greater weight of the evidence is \u201csuch evidence as when compared with that opposed to it has more convincing force\u201d was erroneous in a case in which the defendant offered no evidence, since the jury could have inferred that the plaintiff\u2019s introduction of some evidence constituted the greater weight of the evidence.\nAppeal by defendant Union Supply Company of Durham, Inc., from Godwin, Judge, 16 November 1970 Civil Session of Superior Court held in Durham County.\nPlaintiff instituted this action seeking to recover of the defendants for damages to its property as a result of a fire. Plaintiff alleged that David McDonald (McDonald) undertook to demolish a building on the lot of Union Supply Company of Durham, Inc. (Supply Company); that McDonald intentionally and negligently started a fire thereon and negligently permitted it to escape, damaging plaintiff\u2019s property on adjoining premises leased by plaintiff and used by it for storage; and that the negligence of McDonald was imputed to Supply Company. Supply Company answered and denied the material allegations of the complaint. McDonald did not answer. The parties stipulated as to the contents of the record on appeal. In the \u201cStatement of Case on Appeal\u201d appears the following: \u201c(T)he Court upon motion of plaintiff entered a directed verdict against the defendant McDonald upon the issue of his negligence prior to submission of the case to the jury.\u201d\nMcDonald testified as a witness for plaintiff that he contracted with a Mr. Ira Handsel to take down an old house on Supply Company\u2019s lot for $300 and that while he was working on the house, he got a water hose from Handsel or from somebody. He further testified:\n\u201cAs to whether I ever had an occasion to see Mr. Handsel while I was taking the building down and accumulating these piles, yes. I would have discussions with him when I wanted something or wanted to see him. The tools that I had, a truck, a crowbar, a sledge hammer, were all mine. As to whether I had anything that I got from anybody else, I don\u2019t know, sir, I don\u2019t remember. I might have, but I knew I got a water hose from somebody.\nI did not ask Mr. Handsel to help me tear the house down.\nOn the 7th day of April, 1967, I discussed the starting of this fire with Mr. Handsel. * * * Well, we \u2014 when I talked to him, I asked him would it be all right to burn any of this stuff on the outside, inside the fence, and he told me, yes, it would.\nSo, I went then and got me some water hose. As to where I got it, if I\u2019m not mistaken, I think I got one from him and then I went and borrowed some more. By him, I mean Mr. Handsel. I took the water hose and I run the line up to the pile of trash where I was going to burn from the front of his place, where he had his outside spigot. It was a garden hose. I think we had a nozzle on it.\nI did not go to Don\u2019s Plumbing Company and tell them that I was about to start the fire and to my knowledge neither did Mr. Handsel or any other employee of Union Supply Company. At the time I started the fire the only equipment I had there to control the fire was a water hose.\u201d\nOn cross-examination, McDonald testified:\n\u201cThe agreement had been that I would not only take the house down but I had to get rid of it. I could have it if I wanted it and if I didn\u2019t want it I had to take the stuff away and dispose of it.\u201d\nIt was stipulated that there was sufficient evidence on the question of damages to \u201csupport the jury\u2019s verdict on that issue.\u201d\nAt the conclusion of the evidence (the defendants offered none), the following occurred:\n\u201cAt the close of all evidence the defendant Union Supply Company renewed its motion to the court for a directed verdict in its favor and nonsuit and dismissal of plaintiff\u2019s case for failure of proof of negligence. Motion overruled; Exception.\nThis is Appellant\u2019s Exception No. 5.\nThe defendant did not present any evidence in the case.\nPlaintiff moved for summary judgment in its favor as to the negligence of the individual defendant, David McDonald, which motion was allowed by the court.\u201d\nThe court submitted two issues to the jury, one as to the negligence of Supply Company and the other as to the amount of damages. The jury, by its verdict, found that Supply Company was actionably negligent and that plaintiff had sustained ten thousand dollars damages. After the verdict Supply Company moved, among other things, to set aside the answer to the negligence issue and for judgment notwithstanding the verdict. The motions were overruled and upon the entry of the judgment upon the verdict, Supply Company appealed.\nBryant, Litton, Bryant & Battle by James B. Maxwell for :plaintiff appellee.\nCockman, Alvis & Aldridge by Jerry S. Alvis for defendant appellant." }, "file_name": "0662-01", "first_page_order": 686, "last_page_order": 690 }