Gibbs v. Duke

232 S.E.2d 484 (1977)

32 N.C. App. 439

John William GIBBS et al. v. William Osgood DUKE, Sr.

No. 7626SC731.

Court of Appeals of North Carolina.

March 2, 1977.

*485 Perry, Patrick, Farmer & Michaux, P.A. by Roy H. Michaux, Jr., and Richard W. Wilson, Charlotte, for plaintiffs.

William H. Elam, Charlotte, for defendant.

MARTIN, Judge.

The defendant first contends that the trial court committed reversible error by refusing to admit testimony regarding conversations between a witness and a trustee of the Bertha Frey Foundation, now deceased, and testimony regarding conversations between the defendant and that same trustee. At trial, the defendant attempted to elicit testimony from one of the plaintiffs' witnesses, Peggy Byers, in reference to a telephone call that she supposedly received from one of the Foundation's trustees, John West, concerning the payment by defendant of a sum of money on his financial obligation to the plaintiffs. The defendant also attempted to introduce evidence of discussions and conversations that he himself had had with Mr. West. In both instances, the trial court sustained the plaintiffs' objections and refused to allow the witnesses to answer.

In order for us to answer the defendant's first contention, it is only necessary to consider G.S. 1A-1, Rule 43(c) which provides in part as follows:

"In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given." (Emphasis added.)

In this Court's interpretation of this rule, it has been stated:

"`It is elemental that the exclusion of the testimony cannot be held prejudicial on appeal unless the appellant shows what the witness would have testified if permitted to do so.' (Citation omitted.) Further, the record before us does not show any request made pursuant to Rule 43(c) of our Rules of Civil Procedure that a record be made of the answers which the witness would have given. Therefore, no prejudicial error has been made to appear . . .." Spinella v. Pearce, 12 N.C.App. 121, 122, 182 S.E.2d 620, 621 (1971).

In the case at bar, the record reveals that the defendant failed to include the answers to the questions posed to Mrs. Byers and to the defendant. Moreover, the record reveals that he failed to request that the answers be included in the record. The defendant, having failed to include the answers in the record and having failed to make a request that the answers be included, as required by G.S. 1A-1, Rule 43(c), has not made it appear that such exclusion was prejudicial. This assignment of error is therefore overruled.

By defendant's second assignment of error, he contends that the trial court committed reversible error in denying his motion for a directed verdict at the conclusion of plaintiff's evidence. He argues that there was insufficient evidence to justify a verdict for the plaintiffs and that a directed verdict should therefore have been granted. An examination of the record reveals, however, that after the court rejected the defendant's *486 motion for a directed verdict, he then proceeded to offer his own evidence and did not thereafter renew his motion. By offering his own evidence, the defendant waived his Rule 50 motion for a directed verdict made at the close of plaintiffs' evidence and cannot claim error of its denial on appeal. Overman v. Products Co., 30 N.C.App. 516, 227 S.E.2d 159 (1976); see Woodard v. Marshall, 14 N.C.App. 67, 187 S.E.2d 430 (1972); Wright and Miller, Federal Practice and Procedure: Civil § 2534. This assignment of error is therefore without merit.

In his third assignment of error, the defendant argues that the trial court erred in denying the admission of testimony by defendant's witness, C. E. Hulsey, concerning the defendant's character, reputation, and credit record. We have reviewed the record, and, once again find that the defendant failed to set forth, in the record, the answers the witness would have given had he been allowed to testify, and he failed to make a request that the responses be included as required by G.S. 1A-1, Rule 43(c). The exclusion of such testimony cannot be deemed prejudicial to the defendant. See State v. Forehand, 17 N.C.App. 287, 194 S.E.2d 157 (1973), cert. den. 283 N.C. 107, 194 S.E.2d 635 (1973). This assignment of error is therefore overruled.

Finally, the defendant contends that the trial court erred in denying his motion for judgment notwithstanding the verdict. The defendant moved for a directed verdict at the close of plaintiffs' evidence but we note, however, that the record does not reveal that he made such a motion at the close of all the evidence. In 5A Moore's Federal Practice § 50.08 it is stated:

". . . [A] motion for judgment n. o. v. may be entertained only if the movant has made a motion for a directed verdict at the close of all the evidence. (Emphasis added.) Hence a defendant who fails to move for a directed verdict at the close of all the evidence, or a plaintiff who similarly fails to move for a directed verdict at the close of all the evidence can not present to the trial court a question as to the legal sufficiency of the evidence to support a verdict for his opponent by a motion for judgment non obstante veredicto, or raise the question on appeal."

It has been similarly held by this Court that a motion for judgment non obstante veredicto does not meet the requirements of G.S. 1A-1, Rule 50(b)(1) unless the moving party previously moved for a directed verdict at the close of all the evidence. Dean v. Nash, 12 N.C.App. 661, 184 S.E.2d 521 (1971).

In the case at bar, the defendant moved for judgment non obstante veredicto but he failed to move for a directed verdict at the close of all the evidence. We therefore hold that his motion did not meet the requirements of G.S. 1A-1, Rule 50(b)(1) and hence could not be entertained by the trial court.

MORRIS and VAUGHN, JJ., concur.