Cummings v. Queen City Coach Co., 220 N.C. 521 (1941)

Dec. 10, 1941 · Supreme Court of North Carolina
220 N.C. 521


(Filed 10 December, 1941.)

Trial § 29b — Charge held for prejudicial error in referring to evidence which had not been introduced upon the trial.

Plaintiff did not introduce in evidence any bill for hospital expenses nor any evidence that she had received any such bill, or had paid or is obligated to pay a bill for hospital expenses in any specific amount. The court charged the jury that plaintiff offered evidence that she had received a bill for doctors and medical services in the sum of $118.00 and that she contended that she had had to pay such bill. Held: The charge of the court referring to matters which had not been introduced in evidence and concerning which defendant was afforded no opportunity to cross-examine witnesses, must be held for prejudicial error.

Appeal by defendant from Phillips, J., at May Term, 1941, of Bichmohd.

This is an action for personal injury and property damage alleged to bave resulted from a collision between tbe plaintiff’s automobile and tbe defendant’s bus caused by tbe negligence of tbe defendant. Tbe issues of negligence and damage were answered in favor of tbe plaintiff, and from judgment predicated on tbe verdict tbe defendant appealed, assigning errors.

A. A. Reaves and Jones <& Jones for plaintiff, appellee.

Oates, Quillin & McRae and Fred W. Bynum for defendant, appellant.

ScheNOk, J.

¥e tbinb, and so bold, tbat tbe demurrer to tbe evidence, C. S., 567, was properly overruled.

Tbe court charged tbe jury tbat “tbe plaintiff further offered evidence which tends to show . . . tbat as a result of such injuries she was forced to go to tbe hospital in Wadesboro and stay there approximately twenty-four hours and then stayed in tbe Hamlet hospital for seven days and tbat she has received a bill for doctors and medical services in the sum of $118.00 for treatment of her injuries.” And later tbe court in its charge said: “Tbe plaintiff insists and contends . . . tbat she has been forced to stay in institutions, hospitals, and received medical care to tbe extent tbat she bad a bill for $118.00 for hospital treatment and medical treatment and nursing.”

Both of these excerpts from tbe charge are made tbe bases for excep-tive assignments of error and we are constrained to sustain such assignments, since it nowhere appears in tbe record tbat any hospital bill was -introduced in evidence, Or tbat tbe plaintiff ever received a bill for $118.00 for hospital and medical services, or for any other amount. Tbe *522most that the record tends to show is that the hospital sent out a bill, in an unnamed amount, there being no evidence that the plaintiff ever received such a bill, or ever paid such a bill, or is in anywise obligated to pay such a bill.

The only reference in the evidence, remotely or otherwise, to a hospital bill appears on page 46 of the record, in the cross-examination of the defendant’s witness, Dr. W. D. James, as follows:

“Q. I ask you if you recognize that (handing paper to witness) as being the bill sent out by your hospital ? A. Yes, sir, that is our paper; I never saw it before it went out. I don’t know a thing about the bill being sent out; I didn’t give orders for it to be sent out but it is the routine.”

This is neither evidence of a bill for $118.00, nor is it evidence that the plaintiff received any bill, or paid or is obligated to pay a bill for any specific amount.

Barnhill, J., in S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473, where the court in its charge referred to the “Biblical records” as tending to establish the age of the prosecutrix, writes: “But the State insists that this clause, when considered contextually, constitutes nothing more than a statement of a contention by the State. Even so, it is prejudicial. The record fails to disclose that any birth record entered in a family Bible was identified and offered in evidence. Thus the charge, in part, is based on evidence which had not been introduced and concerning which the defendant was afforded no opportunity to cross-examine the witnesses. By this action of the court evidence material to the issue was placed before the jury without opportunity to answer it or in any way to meet it. This constitutes prejudicial error. S. v. Love, 187 N. C., 32, 121 S. E., 20; Smith v. Hosiery Mill, 212 N. C., 661, 194 S. E., 83.” See, also, Howell v. Harris, ante, 198, 16 S. E. (2d), 829.

For the error assigned there must be a

New trial.