{
  "id": 8575313,
  "name": "ROY L. KING, T&DBA KING'S FURNITURE COMPANY v. ADLAY AUGUSTA BASS and Wife, MARY JEANETTE P. BASS; ALEXANDER MALPASS, SR., and ALEXANDER MALPASS, JR.",
  "name_abbreviation": "King v. Bass",
  "decision_date": "1968-03-20",
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  "first_page": "353",
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  "last_updated": "2023-07-14T20:52:42.272754+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "ROY L. KING, T&DBA KING\u2019S FURNITURE COMPANY v. ADLAY AUGUSTA BASS and Wife, MARY JEANETTE P. BASS; ALEXANDER MALPASS, SR., and ALEXANDER MALPASS, JR."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nAppellants\u2019 assignments of error include the following:\n\u201c1. The Court erred in failing to state anywhere in his charge to the jury that the burden of proof on all the issues was on the plaintiff.\n\u201c2. The Court erred in failing to charge concerning the second issue submitted to the jury that the burden of proof was on the plaintiff and the intensity of proof required.\u201d\nPlaintiff asserted the affirmative on all the issues presented, and the burden was on him to offer evidence in support of all essential and material elements of his cause of action. Bank v. Construction Co., 203 N.C. 100, 164 S.E. 621.\nThis Court considered the duty of the trial judge to instruct on burden of proof in the case of Watt v. Crews, 261 N.C. 143, 134 S.E. 2d 199, wherein Denny, C.J., speaking for the Court, stated:\n\u201cTn Tippite v. R. R., 234 N.C. 641, 68 S.E. 2d 285, this Court said: \u201cG.S. 1-180, as amended, requires that the judge \u2018shall declare and explain the law arising on the evidence given in the case.\u2019 This places a duty upon the presiding judge to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. It is said that \u2018 \u201cthe rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the court. S. v. Falkner, 182 N.C. 793, and cases cited.\u201d Hosiery Co. v. Express Co., 184 N.C. 478.\u2019 Coach Co. v. Lee, 218 N.C. 320, 11 S.E. 2d 341; Crain v. Hutchins, 226 N.C. 642, 39 S.E. 2d 831.\u201d \u2019 \u201d\nThe trial court failed to give instructions as to the burden of proof on any of the issues. This omission violates a substantial right of appellants and constitutes prejudicial error.\nNew trial.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Robert Calder for defendants Malpass, appellants.",
      "No Counsel Contra."
    ],
    "corrections": "",
    "head_matter": "ROY L. KING, T&DBA KING\u2019S FURNITURE COMPANY v. ADLAY AUGUSTA BASS and Wife, MARY JEANETTE P. BASS; ALEXANDER MALPASS, SR., and ALEXANDER MALPASS, JR.\n(Filed 20 March 1968.)\nTrial \u00a7 34\u2014\nThe failure of the court to instruct the jury as to which party has the burden of proof upon an issue is prejudicial error and warrants a new trial.\nAppeal by defendants Alexander Malpass, Sr., and Alexander Malpass, Jr., from Mints, JAugust 1967 Civil Session of New HANOVER.\nThis is a civil action based on contract by which plaintiff seeks to recover the sum of $601.00, with interest, from defendants, jointly and severally. Plaintiff contends the sum is due for carpeting installed in a dwelling house constructed by defendants Malpass and owned by defendants Bass. Plaintiff further seeks to enforce a lien under Chapter 44, Article 8, General Statutes of North Carolina, against the premises belonging to defendants Bass. All defendants deny owing plaintiff any amount.\nIssues were submitted to and answered by the jury as follows:\n\u201cI. Did Adlay Augustus Bass and wife, Mary Jeanette P. Bass, enter into an agreement with Roy L. King, trading and doing business as King\u2019s Furniture Company, for the installation of certain carpeting in a house being constructed for them in Cape Fear Township, New Hanover County, North Carolina, as alleged in the Complaint?\nANSWER: No.\n\u201cII. Did Alexander Malpass, Sr. and Alexander Malpass, Jr. enter into an agreement with Roy L. King, trading and doing business as King\u2019s Furniture Company, for the installation or carpet in a house being constructed for Adlay Augustus Bass and wife, Mary Jeanette P. Bass, in Cape Fear Township, New Planover County, North Carolina, as alleged in the Complaint?\nAnswer: Yes.\n\u201cIII. What amount, if any, are the defendants indebted to the plaintiff?\nAnswer: $601.00.\u201d\nDefendants Malpass- moved to set aside the verdict, which motion was denied. Judgment was entered against defendants Malpass in the amount of $601.00, with interest from 2 May 1966, and the action was dismissed as to defendants Bass.\nDefendants Malpass appealed.\nRobert Calder for defendants Malpass, appellants.\nNo Counsel Contra."
  },
  "file_name": "0353-01",
  "first_page_order": 389,
  "last_page_order": 390
}