Keller v. Caldwell Furniture Co., 199 N.C. 413 (1930)

Sept. 17, 1930 · Supreme Court of North Carolina
199 N.C. 413


(Filed 17 September, 1930.)

1. Negligence D l) — Evidence in this case held admissible as tending to show that plaintiff’s injury affected his earning ability.

In this action to recover damages for an alleged negligent personal injury evidence is held competent as tending to show that the plaintiff’s injury affected his ability to perform physical labor and to earn money under the authority of Sargis v. Power Go., 175 N. C., 31, and other like cases. Shepherd v. Lumber Go., 166 N. C., 130, cited and distinguished.

2. Evidence D f — Witness may explain answer to question asked to impeach his credibility although explanation relates to defendant’s liability insurance.

Where, upon the trial of an action to recover damages for an alleged negligent personal injury, the defendant’s counsel has asked the plaintiff on cross-examination; to impeach his credibility as a witness, “Why did you quit?” (the employment of defendant), which is answered, “They ran me off,” it is competent for the plaintiff to further testify by way of explanation that he was told that “the insurance company would not let him work,” this being an exception to the rule that evidence that the defendant carried liability insurance is inadmissible, and testimony in corroboration of such explanation given by another witness is also competent.

3. Trial E e — In this case held: exception to omission from charge of requested instructions should have been made before verdict.

Where the defendant has privately requested the court to give certain instructions, and this request is overlooked by the court in his charge to the jury, and the defendant fails to call attention to the inadvertence, an exception taken for the first time after verdict is too late, and will not be considered on appeal.

4. Evidence K c — Nonexpert witness may testify from his own observation that certain machinery was not approved and in general use.

Where the plaintiff has been injured while working at the defendant’s machine, and seeks to recover damages therefor, it is not required that a witness be an expert in order to testify as to whether the machine that injured the plaintiff was approved and in general use, it being sufficient if the witness testify from his own knowledge and experience in such matters.

5. Evidence G c — Testimony of declaration of deceased father of plaintiff as to date of plaintiff’s birth held competent.

Where there is a presumption that the father of the plaintiff is dead, testimony of his declarations as to the plaintiff’s age, material to the controversy, made ante litem motam, is competent, and where the evidence discloses that the plaintiff’s father disappeared soon after the plaintiff’s birth and his mother had married again, it is sufficient to admit declarations of this character.

*4146. Ti’ial E b — Charge of trial court held not to contain expression of opinion as to weight and credibility of evidence.

A correct charge of the court upon the evidence in a case will not be held for error as containing an expression of opinion prohibited by C. S., 564, when nothing of this character appears from a careful perusal of the charge on appeal that could bias a mind of ordinary firmness and intelligence.

7. Judgments K a — Consent judgment entered into by next friend of minor may be impeached in action by minor after becoming of age.

A judgment by consent, signed and entered by the court upon the agreement of the next friend bringing the action for a minor, where there is no legal determination by the court of the matter in controversy, no evidence introduced and no issues submitted to a jury, may be impeached in an action brought by the minor after becoming of age in which it is presented as a defense.

Appeal by defendant from Ean'ding, J., at January Special Term, 1930, of Caldwell.

No error.

Action for damages for personal injury. At the time of his injury the plaintiff was a minor and an employee of the defendant. He was engaged in the work of tailing a planer, i. “taking away the timbers after they went through the machine.” The planer was run by a belt and pulley. The pulley was very near the floor and was not incased. There is evidence that the floor was greasy and uneven. The plaintiff’s narrative of the injury is as follows: “When we got the truck rolled up to the machine I started around to my place where I was to be, and just as I made the turn to go around the floor I stepped on a block and my foot came out from under me and the pulley caught me by the foot and slung me 10 or 12 feet.” It became necessary to amputate his right foot. Other relevant facts are set out in the opinion.

Issues as to the defendant’s negligence,- the plaintiff’s contributory negligence, the statute of limitations, the bar of a judgment in a former action, and damages were answered in favor of the plaintiff. Judgment for the plaintiff and appeal by the defendant.

Ma/rh Squires and W. A. Self for appellant.

D. L. Russell and W. G. Newland for appellee.

AdaMS, J.

The first five exceptions are without substantial merit. The testimony to which they relate was admissible as tending to show that the plaintiff’s injury affected his ability to perform physical labor and to earn money. Wallace v. R. R., 104 N. C., 442; Eansley v. R. R., 115 N. C., 611; Rushing v. R. R., 149 N. C., 161; Hargis v. Power Co., 175 N. C., 31. The exceptions are not within the principle, stated in Shepherd v. Lumber Co., 166 N. C., 130.

*415Tbe second assignment of error questions tbe competency of evidence and tbe propriety of remarks made by one of tbe plaintiff’s attorneys in bis address to tbe jury. Tbe plaintiff was under cross-examination. He testified tbat after be was burt be worked for tbe defendant. Tbe defendant’s counsel then asked, “Why did you quit?” Tbe plaintiff answered, “Tbey ran me off; said tbe insurance wouldn’t allow them to work me.” Tbe defendant’s motion to strike out tbe answer was denied. Exception 7.

On bis direct examination Joe "Whisnant, stepfather of tbe plaintiff, testified after objection by tbe defendant, tbat Mr. Beard, superintendent of the factory, told bim tbat tbe insurance company would not allow tbe defendant to keep tbe plaintiff in its service. Exception 10.

In tbe concluding argument one of tbe counsel for tbe plaintiff used substantially tbis language: “Tbe plaintiff told (tbe defendant’s attorney) tbat the insurance company would not let bim work. What bas tbe insurance company got to do witb tbe case? Since wben bas it happened tbat tbe insurance company can say who can and who cannot work for tbe Caldwell Furniture Company? I cannot see what tbey have to do witb it.” Tbe defendant’s counsel privately requested tbe judge to tell tbe jury in bis charge “not to consider tbe insurance company.” Tbe request was overlooked. Counsel for tbe defendant was present wben tbe charge was given and did not except, but entered an exception at tbe time of settling tbe case on appeal. Exception 27-A.

Tbe defendant argued tbat tbe evidence excepted to was an indirect method of informing tbe jury tbat tbe defendant bad insurance which, in case of tbe plaintiff’s recovery, would indemnify it against loss. Tbis Court bas been insistent'in its disapproval of any attempt by tbe plaintiff, in an action for personal injury or death, to prove tbat tbe defendant bad insurance protecting it from tbe consequences of its own negligence. In Lytton A Maomfacturing Company, 157 N. C.,, 331, evidence tbat tbe defendant in an action for damages arising from personal injury was insured in a casualty company was held to be incompetent because it was entirely foreign to tbe issues raised by tbe pleadings — a position maintained in several subsequent decisions. Featherstone v. Cotton Mills, 159 N. C., 429; Starr v. Oil Company, 165 N. C., 587; Luttrell v. Hardin, 193 N. C., 265. In these cases tbe evidence was offered by tbe plaintiff. Tbe annotation in 56 A. L. R., 1418, contains an exhaustive review of tbe cases on tbis subject. On page 1432 it is said: “Tbe general rules and principles applicable to tbe question of tbe admissibility of evidence, in a negligence action, of tbe fact tbat tbe defendant therein carries liability or indemnity insurance protecting bim from tbe consequences of negligence, are settled beyond dispute, but like most other rules of evidence, tbey are subject to qualifications and *416exceptions.” The principle relating to tbe qualification of the rule is stated by Holes, J., in Bryant v. Furniture Co., 186 N. C., 441, as follows : “It has been held in this State that in a trial of this kind the fact that a defendant company charged with negligent injury held a policy of indemnity insurance against such a liability is ordinarily not competent, and when received as an independent circumstance relevant to the issues, it may be held for prejudicial error. And if brought out in the hearing of the jury by general questions asked in bad faith and for the purpose of evasion, it may likewise be held for error. On the contrary, if an attorney has reason to believe that a juror, tendered or on the panel, has pecuniary or business connection naturally enlisting his interest in behalf of such a company, it is both the right and duty of the attorney in the protection of his client’s rights to bring out the facts as the basis for a proper challenge, or if in the course of the trial it reasonably appears that a witness has such an interest that it would legally affect the value of his testimony, this may be properly developed, and where such a fact is brought out merely as an incident, on cross-examination or otherwise, it will not always or necessarily constitute reversible error when it appears from a full consideration of the pertinent facts that no prejudicial effect has been wrought.”

The application of the modification is given in Davis v. Shipbuilding Co., 180 N. C., 74, in which it was held, upon the defendant’s denial of the plaintiff’s employment, that the fact that the defendant held indemnity insurance for injury to its employees was competent as tending to show that the plaintiff was in its service.

In the case at bar the evidence excepted to (Exception 7) was evoked by the defendant. If a witness gives an answer which is not responsive to a question, the proper course is a motion to strike out the answer or to instruct the jury to disregard it. Hodges v. Wilson, 165 N. C., 323; Godfrey v. Power Co., 190 N. C., 24, 31. This motion was made. But the plaintiff’s answer was a direct response to the defendant’s question, “'Why did you quit?” If the answer had been confined to the words, “They ran me off,” the plaintiff’s testimony would have been subject to grave impeachment. It would have worked serious if not irreparable injustice to him to exclude the reason given by the defendant for turning him off. He was entitled to an opportunity to counteract the damaging effect of the question which was manifestly intended to weaken his testimony, by reciting in its entirety the reason given by the defendant.

On the same principle the tenth exception must be overruled. It was said in S. v. Bethea, 186 N. C., 22, that when the credibility of a witness is impugned by cross-examination tending to impeach his veracity or his relation to the cause, it is permissible to corroborate his credibility and *417to restoré confidence in bis -veracity. Such corroborating evidence may include previous statements whether made pending the controversy or ante litem motam. Dellinger v. Building Co., 187 N. C., 845. The object of the cross-examination was to impair or discredit the plaintiff’s version of the injury; and in corroboration of what he had said it was legitimate to prove by Joe Whisnant that the defendant’s superintendent told him the plaintiff had been discharged for the identical reason the defendant had given the plaintiff. The superintendent’s statement may not have been competent as substantive evidence against the defendant, but it was competent in corroboration; if competent for any purpose there was no error in refusing to exclude it.

Exception 27-A is likewise untenable. The defendant’s counsel expressly declined to interrupt the concluding argument to the jury and relied upon his private understanding with the judge. He heard the charge, and not only failed to call attention to the court’s inadvertence, but entered no exception until the case on appeal was settled. The exception should have been taken before the verdict was returned. S. v. Tyson, 133 N. C., 692; S. v. Davenport, 156 N. C., 596, 612.

Assignments 5 and 12 include exceptions 11, 12, 13, 18, 19, 20, 28, and rest upon the assumption that Joe Whisnant and John Whisnant were permitted to say whether certain appliances were approved and in general use without qualifying as experts. The testimony of these witnesses did not involve a question of science or a conclusion to be drawn from a hypothetical statement of facts; it was elicited as a matter within their personal knowledge, experience, and observation: The exception to the general rule that witnesses cannot express an opinion is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; it includes the evidence of common observers testifying to the results of their observation. Britt v. R. R., 148 N. C., 37; Marshall v. Telephone Co., 181 N. C., 292.

Exceptions .14, 15, 16, 17. The age of the plaintiff being in controversy the court admitted in evidence the declarations of the plaintiff’s father on this point. He told John Whisnant in 1908 that the plaintiff was born 31 January, 1906. The plaintiff testified that this was the date of his birth; that his father disappeared when he was a boy, and that several years thereafter his mother married the second timé. There is a presumption that the plaintiff’s father is dead and his declaration, made ante litem motam, was competent on the fact in issue. Clements v. Hunt, 46 N. C., 400; Norris v. Edwards, 90 N. C., 383; Ewell v. Ewell, 163 N. C., 234; Jelser v. White, 183 N. C., 126; Beard v. Sovereign Lodge, 184 N. C., 154.

Assignments 13, 14, 15, 16, 17, 18 are based upon the contention that the presiding judge inadvertently disregarded the provisions of O. S., *418564, and influenced the verdict by impressing the minds of the jurors with the idea that the defendant was knowingly guilty of a crime when it employed the plaintiff; that the plaintiff was immune from the charge of contributory negligence; and that in reality the quantum of damages was the only issue to be determined. The legal principles contained in the instructions are not impeached; but it is insisted that the jury must have understood the instructions as the intimation, if not the expression, of an opinion which was hostile to the defendant.

The court has endeavored to maintain the integrity of section 564 by the strict observance of its provisions, holding that the statute is mandatory and that any expression of opinion by the trial judge during the trial may be excepted to after the verdict is returned. S. v. Ownby, 146 N. C., 677; S. v. Rogers, 173 N. C., 755; Greene v. Newsome, 184 N. C., 77; S. v. Bryant, 189 N. C., 112; S. v. Sullivan, 193 N. C., 754.

Our interpretation of the charge does not justify the appellant’s conclusion. We have discovered nothing in the instructions which should bias a mind of ordinary firmness and intelligence or in anywise detract from the quality described by counsel for the appellant as “the fine sense of right characterizing the trial judge.”

In November, 1919, a consent judgment was signed in an action pending in the Superior Court of Caldwell County entitled “Yancey Saunders (the present plaintiff) by his next friend, Mary Whisnant, v. Caldwell Furniture Company.” The complaint was filed on behalf of the plaintiff for his injury and on behalf of his mother for the loss of his services. The judgment was not based upon an actual investigation of the facts. No answer was filed, no evidence was introduced, no issues were submitted to the jury. The judgment was signed by the judge who tried the case now under, consideration. In the present case he held that as to the plaintiff, who was then a minor, the consent judgment was void. The defendant paid the judgment by a check given to “Mary Whisnant, next friend of Yancey Keller.” The plaintiff testified that he had never received any part of the check.

The question raised by the exception has been determined adversely to the defendant’s contention. In Ferrell v. Broadway, 126 N. C., 258, the Court said: “But it may be taken to be the law that, in a case where issues are joined between infants on one side and the adverse party and no evidence is introduced, and nothing is done or said on the trial except that an agreement is entered into by the next friend or counsel of the infants, that the verdict shall be rendered against the infant, the verdict and judgment will not bind the infants. In such a case, the court would have no knowledge of the facts, and therefore could not exercise any supervision over the interest of the infants. The object in having a next friend appointed for infants is to have their rights and *419interests claimed and protected, and tbe next friend or their counsel will not be permitted to yield their rights to others by a consent verdict and judgment where the court has exercised no supervision over the arrangement.” The case was reheard (127 N. C., 404) on a different ground, but as pointed out in Rector v. Logging Co., 179 N. C., 59, the principle set out in the quotation above was in no wise modified or questioned. On the contrary it was approved in the case last cited, the Court, in an opinion delivered by HoTce, J., saying in effect that the principle was against the validity of the compromise judgment, but deferring final decree because in his replication the plaintiff had raised an issue of fraud. The Court has also approved the principle that the compromise can be impeached upon the trial of the action in which it is presented as a defense. Bunch v. Lumber Co., 174 N. C., 8.

The remaining exceptions, including the motion for nonsuit, call for no discussion. We find

No error.