Opinion

Davis v. Chauffeurs

  • 15 N.C. App. 286
  • 189 S.E.2d 742
  • 1972 N.C. App. LEXIS 1903
Court
Court of Appeals of North Carolina
Filed
Jul 12, 1972
Status
Published
Author
Vaughn
On the bench
Graham, Morris, Vaughn
Cited by
0 cases
Authority
More cited than 14.8%

The opinion

VAUGHN, Judge.

Defendant’s single assignment of error is that there was insufficient evidence to support the trial court’s finding of fact that, at the time of plaintiff’s retirement, there were 4500 union members participating in the voluntary retirement fund. The judgment entered is based largely on the judge’s finding of fact number four, which reads:

“There were 4,500 participants at the time of plaintiff’s retirement thereby entitling plaintiff to be paid a total of $4,500.00 from the fund administered by defendant. According to rules and policy in effect at the time of plaintiff’s retirement, on or about February 1, 1968, plaintiff was entitled to receive $4,500.00 from the ‘Death, Disability and Retirement Fund’ administered by defendant.”

The only testimony relating to the number of union members participating in the fund at the time of plaintiff’s retirement in 1968 is to be found in that of Mr. Earl W. Kiger, an officer of the union. At the time of plaintiff’s retirement Mr. Kiger was only a member of the union and did not become an officer until 1969. He testified he had never “looked up” how many members were participating at the time of plaintiff’s retirement. Mr. Kiger’s testimony, in relevant part, is as follows:

“Q. How many members were there on February 1, 1968?

A. I can’t tell you.

Q. Was it more than four thousand?

A. I can’t tell you.

Q. How many were participating in the plan?

A. In 1968?

Q. Right.

A. I don’t know; I can’t say exactly.

Q. Didn’t you have about eight thousand members in 1968?

A. No, we didn’t have eight thousand in ’68.

*288 Q. How many did you have?

A. Well, I would say approximately sixty-five hundred.

Q. Sixty-five hundred participating in your trust fund account for this—

A. No, I said members.

Mr. Drum: Objection.

Q. How many participants did you have then if you had sixty-five hundred members and the figure was different, how many participants did you have to your recollection?

A. I don’t know; I couldn’t give you — I’d say between forty-four to forty-six hundred.

Q. Closer to forty-six?

A. I would imagine; I can’t answer you correctly because I don’t know.

Q. And they are entitled to one dollar a piece.

A. Yes, sir.

Q. For forty-six hundred members. Thank you, that is all.”

It is obvious that the witness had no knowledge as to the number of members participating in the fund on 1 February 1968. He repeatedly disclaimed any such knowledge. It is equally clear that he had no knowledge of any facts which would have enabled him to base an opinion as to the number. His testimony, therefore, does not support the court’s finding of fact to which exception was taken. The finding is not bolstered by the testimony of another witness for plaintiff who testified that he retired in “approximately” April of 1968 and subsequently received $4,500.00. All of the evidence was to the effect that the number of participating members fluctuated. The evidence, therefore, does not support the finding of fact. It was error for the trial judge to enter judgment for the plaintiff based on a finding of fact not supported by competent evidence. Morse v. Curtis, 276 N.C. 371 , 172 S.E. 2d 495 ; Horton v. Redevelopment Commission, 264 N.C. 1 , 140 S.E. 2d 728 ; Coble *289 v. Brown, 1 N.C. App., 159 S.E. 2d 259; 1 Strong, N.C. Index 2d, Appeal and Error, § 57.

Reversed.

Judges Morris and Graham concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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