HOUSER v. BEAM, 111 N.C. 501 (1892)

16 S.E. 335

J. B. HOUSER v. P. C. BEAM.

Supreme Court of North Carolina
(September Term, 1892.)

Trial — Argument of Counsel — Evidence.

1. Irregularity in the manner of the introduction of testimony will not warrant a new trial, unless it appears that the appellant was prejudiced thereby.

2. It is the duty of the court to stop counsel in comments which are not warranted by the evidence.

ACTION to recover back the sum of $500, which the plaintiff alleged he had paid over to one Humphreys for the benefit of defendant Beam, tried at Spring Term, 1892, of GASTON, by Bynum, J.

Page 316

The plaintiff was at the time acting as agent of the express company at Cherryville, North Carolina, and claimed that he delivered a package of said amount to Beam for Humphreys; and this was denied (504) by defendant.

Houser, the plaintiff, swore that he was not in the employ of McGuinas when these packages were lost. That he heard of the packages being lost, but at the time of the loss he was not in any way connected with McGuinas.

Counsel for defendant Beam, in the course of his arguments to the jury, adverted to the loss of those packages, and used this language: “It is not surprising that the $500 package alleged to have been given to Beam was lost. It is exactly what would have been expected in an office so loosely managed as this, under the control of Houser, as we have positive evidence that two packages were lost while he was the agent of McGuinas, with which two packages Beam had nothing to do.” Counsel for plaintiff here objected to this comment. There was no evidence that Houser was in the employ of McGuinas when the other packages were misplaced. Objection sustained, and counsel for Beam excepted.

There was a verdict for the plaintiff. Judgment for plaintiff and appeal by defendant.

G. F. Bason and C. W. Tillett for plaintiff.

John Devereux, Jr., for defendants.

(505) PER CURIAM:

We have carefully examined the record in this case, and, while it appears that there was some irregularity in in introduction of testimony, we fail to see how the defendant was in the least prejudiced thereby. The evidence did not warrant the comment of counsel, and there was no error on the part of the court in stopping the same.

NO ERROR.