Jernigan v. Jernigan, 238 N.C. 444 (1953)

Oct. 21, 1953 · Supreme Court of North Carolina

238 N.C. 444

ALDER MAE JERNIGAN v. COLONEL JERNIGAN.

(Filed 21 October, 1953.)

1. Appeal and Error § 51a—

Where the Supreme Court bolds on appeal that the evidence was sufficient to overrule defendant’s motions to nonsuit, in the subsequent trial upon substantially the same evidence the question of the sufficiency of the evidence is foreclosed.

2. Trial § 22b—

Upon motion to nonsuit, evidence of defendant in contradiction to that offered by plaintiff is properly disregarded.

3. Evidence §§ 42c, 45: Automobiles § 18g (4)—

Testimony of declarations made by defendant driver shortly after the accident in suit that he could have avoided the accident in several ways, is held a shorthand statement of fact based on personal knowledge, and competent as an admission against interest.

Appeal by defendant from Frizzelle, J., and a jury, at February Term, 1953, Of JOHNSTON.

Civil action by wife against husband for personal injuries allegedly caused by the actionable negligence of the husband in the operation of an automobile in which the wife was a guest.

The defendant Colonel Jernigan and the plaintiff Alder Mae Jernigan are husband and wife. The accident culminating in this litigation occurred on the afternoon of 25 June, 1950, at the juncture of State Highway No. 40 and an unpaved road four miles west of the Town of Benson when an automobile driven by the defendant and an automobile operated by one Rufus Capps collided. The plaintiff, who was a guest in her husband’s car, suffered personal injuries in the collision.

This ease was before this Court at the Fall Term, 1952, upon the appeal of the plaintiff from a compulsory nonsuit entered at the close of her evidence on the first trial of the cause. This Court held at that time that the plaintiff’s evidence made the liability of the defendant to the plaintiff a question for the jury, and reversed the compulsory nonsuit on that ground. Tbe opinion of tbis Court on tbe former appeal is reported in 236 N.O. 430, 72 S.E. 2d 38, where tbe plaintiff’s evidence at tbe first trial is stated.

Tbe cause was tried anew at tbe February Term, 1953, of tbe Superior Court of Johnston County. Both parties offered evidence at that time. Tbe plaintiff’s evidence was substantially tbe same as that presented by her at tbe original trial. Tbe defendant’s evidence tended to show that tbe sole proximate cause of the collision and the resultant injuries to tbe plaintiff was tbe negligence of Capps in tbe management of bis automobile. These issues were submitted to tbe jury: (1) Was the plaintiff injured and damaged by tbe actionable negligence of tbe defendant, as alleged in tbe complaint? (2) If so, what amount of damages, if any, is tbe plaintiff entitled to recover of tbe defendant ?

Tbe jury answered tbe first issue “Yes,” and tbe second issue “$5,000.00.” Tbe trial judge entered judgment for plaintiff in accordance with tbe verdict, and the defendant appealed.

J. R. Barefoot and E. R. Temple for plaintiff, appellee.

A'. M. NoJ)le for defendant, appellant.

Ervin, J.

Tbe defendant makes these assertions by bis assignments of error:

1. The court erred in refusing to dismiss tbe action upon a compulsory nonsuit at tbe close of all tbe evidence.

2. Tbe court erred in permitting tbe plaintiff to testify that subsequent to tbe accident tbe defendant admitted be could have avoided tbe collision with tbe Capps ear in several ways.

Counsel for tbe defendant lays great stress on bis contention that tbe action ought to have been involuntarily nonsuited in tbe Superior Court. "We are compelled to bold, however, that tbis question is foreclosed against tbe defendant by tbe decision on tbe former appeal adjudging tbe plaintiff’s evidence sufficient to carry the case to tbe jury and to support a verdict in her favor. Tbis is true for tbe very simple reason that tbe evidence adduced by tbe plaintiff at the second trial is substantially tbe same as that presented by her at tbe first trial and considered by us on tbe former appeal. Mintz v. R. R., 236 N.C. 109, 72 S.E. 2d 38; Maddox v. Brown, 233 N.C. 519, 64 S.E. 2d 864; Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Pinnix v. Griffin, 221 N.C. 348, 20 S.E. 2d 366; 141 A.L.R. 1164; Wall v. Asheville, 220 N.C. 38, 16 S.E. 2d 397; Simpson v. Oil Co., 219 N.C. 595, 14 S.E. 2d 638; McGraw v. R. R., 209 N.C. 432, 184 S.E. 31; Dixson v. Realty Co., 209 N.C. 354, 183 S.E. 382; Groome v. Statesville, 208 N.C. 815, 182 S.E. 657; Masten v. Texas Co., 204 N.C. 569, 169 S.E. 158; Madrin v. R. R., 203 N.C. 245, 165 S.E. 711; Newbern v. Telegraph Co., 196 N.C. 14, 144 S.E. 375; McCall v. Institute, 189 N.C. 775, 128 S.E. 349; Soles v. R. R., 188 N.C. 825, 125 S.E. 24; Ciarle v. Sweaney, 176 N.C. 529, 97 S.E. 474. In ruling on tbe motion to non-suit, tbe trial judge properly disregarded tbe evidence of tbe defendant contradictory to that supporting tbe plaintiff’s contention. Hansley v. Tilton, 234 N.C. 3, 65 S.E. 2d 300.

Tbe defendant objects to tbe receipt of bis extrajudicial declaration tbat be could bave avoided striking tbe Capps car in several ways on the theory tbat such declaration expresses a mere opinion or conclusion, and for tbat reason falls within tbe condemnation of tbe general rule excluding opinions or conclusions. Insurance Co., v. R. R., 195 N.C. 693, 143 S.E. 516. This position is untenable. Tbe declaration can be reasonably interpreted to be a short-hand statement of fact based on tbe personal knowledge of the defendant. This being so, the trial judge rightly received tbe declaration in evidence as an admission against tbe interest of tbe defendant on tbe issue of liability. Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Stansbury: North Carolina Evidence, section 167; Micbie: The Law of Automobiles in North Carolina, section 253; 31 C.J.S., Evidence, section 272.

Since no error is shown, tbe judgment entered in tbe Superior Court will be sustained.

No error.