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Simpson v. Hatteras Island Gallery Restaurant Inc.3/16/1993
WYNN, Judge.
This appeal arises from a personal injury and wrongful death action brought by the plaintiff, Barbara Simpson, originally against the defendant and third-party plaintiff, Hatteras Island Gallery Restaurant, Inc. [hereinafter Restaurant], for the death of her husband, Dr. William Simpson. Dr. Simpson's death was determined to be the result of scombroid fish poisoning, which results from elevated levels of histamine in the scombroid fish family, allegedly incurred from his eating tuna at the Restaurant.
Mrs. Simpson filed her complaint against the Restaurant on 29 September 1989, claiming causes of action in negligence and breach of warranty of merchantability. The Restaurant subsequently filed a third-party complaint for indemnity against the Willie R. Etheridge Seafood Co., Inc. [hereinafter Etheridge] as the supplier of the tuna served to Dr. Simpson, and Mrs. Simpson was permitted to amend her complaint to file a direct action against Etheridge.
At trial, after the close of all the evidence, Etheridge moved for a directed verdict, which motion was denied. The jury then returned a verdict indicating that neither Etheridge nor the Restaurant was negligent in its handling of the tuna, and that both Etheridge and the Restaurant had breached an implied warranty of merchantability in their respective sales of the tuna. Because of the breach of warranty, the jury found that Mrs. Simpson was entitled to recover damages in the amount of $400,000.
On 24 May 1991 Etheridge filed a motion for a judgment notwithstanding the verdict. That motion was denied and on 12 July 1991, the trial court entered a written judgment on the verdict against Etheridge and the Restaurant in the total amount of $400,000 and entered a judgment against Etheridge in favor of the Restaurant in the amount of $400,000. Following the judgment, the Restaurant paid $400,000 to Mrs. Simpson, and thus neither Mrs. Simpson nor the Restaurant appealed the judgment. However, Etheridge gave notice of appeal on 31 July 1991.
I.
The third-party defendant, Etheridge, first assigns error to the trial court's denial of its motion for a directed verdict and subsequent motion for a judgment notwithstanding the verdict. Etheridge argues that the evidence is too remote and speculative to support a finding by the jury that Etheridge breached its implied warranty of merchantability. We disagree.
The issue presented by a motion for a directed verdict is whether the evidence is sufficient to go to the jury. The trial court, in ruling on such a motion, must examine the evidence in a light most favorable to the non-moving party, drawing all reasonable inferences from that evidence and resolving all discrepancies in favor of the non-movant. Goodman v. Wenco Foods, Inc., 333 N.C. 1, 9, 423 S.E.2d 444, 447 (1992). A motion for a judgment notwithstanding the verdict essentially requests that judgment be entered in accordance with an earlier requested motion for a directed verdict, despite a contrary verdict entered by the jury. Testing the sufficiency of the evidence in such a motion involves a process identical to that for a directed verdict. Taylor v. Walker, 320 N.C. 729, 733-34, 360 S.E.2d 796, 799 (1987).
The sale of food or drink constitutes a sale of goods, and a warranty of merchantability is implied in all contracts for the sale of goods. See N.C. Gen. Stat. ยง 25-2-314(1) (1986). In order for a jury to find a breach of this implied warranty of merchantability the purchaser must prove (1) that the goods in question were subject to the implied warran
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