#### SAMUEL W. GUYES v. C. T. COUNCIL and GERMAIN BERNARD, Partners, Trading and Doing Business Under the Style and Firm Name of BC REMEDY COMPANY.

(Filed 25 May, 1938.)

Trial § 29a — Form of instruction as to answering of issues held sufficiently full in view of amount of evidence and complexity of case.

While ordinarily the trial court should instruct the jury separately as to the facts it must find in order to answer each of the issues in the affirmative, where there is a great deal of evidence and numerous ele*655ments constituting the causes of action alleged, it will not be held for error for tbe trial court to explain tbe law, recount tbe evidence, explain wbat facts would constitute the respective causes of action, state tbe respective contentions of tbe parties, and charge tbe jury as to each issue to answer it affirmatively if the plaintiff had satisfied it by the greater weight of the evidence of tbe facts essential to establish that particular cause of action as theretofore explained by the court.

Appeal by plaintiff from Phillips, J., at October Term, 1937, of Guilford. No error.

This is an action instituted by tbe plaintiff against tbe defendants to recover compensation for personal injuries alleged to bave been caused by tbe negligence and tbe fraud and deceit of tbe defendants, wbo are tbe manufacturers of a certain proprietary medicine sold under tbe name of BO.

Tbe defendants manufacture BO, a proprietary medicine; and sell tbe same to drug stores, soda fountains, filling stations and other retail businesses, for resale to tbe public. Tbe plaintiff alleges that tbe defendants, in their advertisements in newspapers and other periodicals and by radio and in tbe directions upon tbe packages in which tbe medicine is sold, and otherwise, falsely represent tbe medicine to be safe and reliable for use by human beings, without depressing or bad after effects, harmless and nonbabit forming, and that it may be taken with tbe absolute assurance that it does not contain narcotics. Tbe plaintiff also alleges that tbe manufacture and sale of BO, containing poisonous and injurious drugs, by defendants without making known and giving warning of tbe dangerous nature- and effect thereof, constituted actionable negligence. He likewise alleges that tbe advertisements in question constituted negligence and that tbe defendants were negligent in publishing tbe directions for use of tbe preparation; that tbe preparation was misbranded in violation of tbe statute and that such misbranding constituted negligence.

Tbe plaintiff offered evidence which be contends tends to support said allegation of negligence and similar allegations in tbe complaint. Tbe defendants denied tbe allegations of fraud and deceit and of negligence and offered evidence ténding to contradict and rebut tbe testimony offered by tbe plaintiff, and tending further to show that said medicine is harmless, is not misbranded, is not narcotic, and is not habit-forming.

At tbe conclusion of tbe evidence issues were submitted to and answered by tbe jury as follows:

“1. Was tbe plaintiff injured through tbe negligence of tbe defendants, as alleged in tbe complaint? Answer: No.’

“2. Was tbe plaintiff injured through tbe fraud and deceit of tbe defendants, as alleged in tbe complaint? Answer: No.’

“3. Wbat compensatory damages, if any, is tbe plaintiff entitled to recover ? Answer: .

*656“4. What punitive damages, if any, is the plaintiff entitled to recover ? Answer: .”

Upon the coming in of the verdict the court below rendered judgment that the plaintiff have and recover nothing in this action, and that he be taxed with the costs, and the plaintiff excepted and appealed.

Guthrie & Guthrie, Ilobgood ■& Ward, and Francis I. Anderson for plaintiff, appellant.

Fuller, Reade & Fuller for defendants, appellees.

Per Curiam.

The plaintiff has abandoned all except one of his assignments of error and presents to us for decision but one question: Does the charge of the court meet the requirements of that part of C. S., 564, requiring a trial judge to "state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon ?”

The court below gave an extended charge, which consumes more than forty-eight pages of the printed record, in which he carefully and correctly defined what constitutes fraud and deceit as those terms are related to the evidence in the cause. He likewise defined negligence as that term relates to the evidence relied upon by the plaintiff. That is, he explained to the jury what facts would constitute fraud and deceit and what facts would constitute negligence under the allegations and evidence in the cause. He then recapitulated the evidence, witness by witness. This was followed by a full statement of the contentions of the respective parties.

Then, after explaining the burden of proof, the court charged the jury directly upon the issues substantially as shown by his charge on the second issue, which, after quoting the issue, is as follows: "If the plaintiff has satisfied you by the greater weight of the evidence that he was injured through fraud and deceit of the defendants, bearing in mind and remembering the definition of fraud and deceit and other rules of law applicable that the court has heretofore more fully explained to you, then you will answer the second issue ‘Yes,’; otherwise, No.’ ”

While the better practice may require the judge to state in his charge to the jury that if it finds certain recited facts which the plaintiff contends are established by the evidence they would answer the issue in the affirmative, otherwise in the negative, so that the jury may thus get an immediate picture of the facts necessary to support an affirmative answer to the issue, we cannot hold the method pursued by the court below is a violation of the provision of O. S., 564. There was much evidence offered and numerous elements enter into and constitute a part of the alleged fraud and deceit and alleged negligence. It would be difficult, if not impossible, for a judge to intelligently explain to the jury the controverted issues except in the manner adopted by the court below.

*657Tbe plaintiff bas bad bis cause submitted to a jury under a charge wbicb fully explains tbe law and tbe evidence, and tbe jury bas rendered a verdict adverse to bim. His exceptive assignment of error cannot be sustained.

No error.