197 S.E. 121 | N.C. | 1938
This is an action instituted by the plaintiff against the defendants to recover compensation for personal injuries alleged to have been caused by the negligence and the fraud and deceit of the defendants, who are the manufacturers of a certain proprietary medicine sold under the name of BC.
The defendants manufacture BC, a proprietary medicine, and sell the same to drug stores, soda fountains, filling stations and other retail businesses, for resale to the public. The plaintiff alleges that the defendants, in their advertisements in newspapers and other periodicals and by radio and in the directions upon the packages in which the medicine is sold, and otherwise, falsely represent the medicine to be safe and reliable for use by human beings, without depressing or bad after effects, harmless and nonhabit forming, and that it may be taken with the absolute assurance that it does not contain narcotics. The plaintiff also alleges that the manufacture and sale of BC, containing poisonous and injurious drugs, by defendants without making known and giving warning of the dangerous nature and effect thereof, constituted actionable negligence. He likewise alleges that the advertisements in question constituted negligence and that the defendants were negligent in publishing the directions for use of the preparation; that the preparation was misbranded in violation of the statute and that such misbranding constituted negligence.
The plaintiff offered evidence which he contends tends to support said allegation of negligence and similar allegations in the complaint. The defendants denied the allegations of fraud and deceit and of negligence and offered evidence tending to contradict and rebut the testimony offered by the plaintiff, and tending further to show that said medicine is harmless, is not misbranded, is not narcotic, and is not habit-forming.
At the conclusion of the evidence issues were submitted to and answered by the jury as follows:
"1. Was the plaintiff injured through the negligence of the defendants, as alleged in the complaint? Answer: `No.'
"2. Was the plaintiff injured through the fraud and deceit of the defendants, as alleged in the complaint? Answer: `No.'
"3. What compensatory damages, if any, is the 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. 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 C. 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. *657
The plaintiff has had his cause submitted to a jury under a charge which fully explains the law and the evidence, and the jury has rendered a verdict adverse to him. His exceptive assignment of error cannot be sustained.
No error.
