McKay v. Parham

304 S.E.2d 784 (1983)

James D. McKAY, Administrator of the Estate of Alva Lee Carter v. Waverly Shane PARHAM and Linda Parham.

No. 829SC882.

Court of Appeals of North Carolina.

July 19, 1983.

*786 Currie, Simmons, Pugh & Joyner by Irving Joyner, Raleigh, for plaintiff-appellant.

Haywood, Denny & Miller by George W. Miller, Jr. and James Aldean Webster, III, Durham, for defendants-appellees.

ARNOLD, Judge.

Before we address the merits of this case, we must first determine if the plaintiff properly preserved exceptions to the alleged errors in the trial below.

The plaintiff excepted to allowing Tyner to give an opinion on the likely path of the vehicles after the collision. This preserved the alleged error for review on appeal under Rule 10(b)(1), N.C.Rules App.Proc.

The defendant argues, however, that this exception cannot be raised on appeal because substantially the same evidence objected to came in later. We disagree.

Under G.S. 1A-1, Rule 46(a)(1), "when there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning." Although the line of questioning objected to was not specified here, it is enough if the line objected to is apparent to the court and the parties, as it was in this case. Duke Power Co. v. Winebarger, 300 N.C. 57, 68, 265 S.E.2d 227, 234 (1980).

The plaintiff also raised the grant of a directed verdict in favor of the defendant husband as an assignment of error in the record. His exception refers to pages in the transcript where no proper exception was made.

Although this is a violation of the appellate rules, we will review this contention on appeal. G.S. 1A-1, Rule 46(b) provides that an exception to grant of a motion like this one is preserved if the party "makes known the action which he desires the court to take and his ground therefor" when the ruling is made. See also, W. Shuford, N.C.Civil Practice and Procedure § 46-6 (2d ed. 1981). The transcript shows that the plaintiff informed the court of his opposition to the directed verdict and the grounds for his opposition. As a result, this exception was properly preserved. We now turn to the merits of this case.

The plaintiff first objects to allowing Tyner to testify as to where the cars would have come to rest under two hypothetical fact situations. He argues that the testimony only served to confuse the jury, was unnecessary, and courts generally look with disfavor on reconstructing accidents.

We find that it was proper to allow Tyner to answer the two hypothetical questions. G.S. 8-58.13 provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." Although it was once said that expert testimony had to relate to a trade requiring special knowledge, "the only question [now] is whether the particular matter under investigation is one on which the witness can be helpful to the jury because of his superior knowledge." 1 Brandis, N.C. Evidence § 134 (2d rev. ed. 1982).

The transcript shows that Tyner was adequately qualified and accepted by the court as an expert. His testimony, based on his training and knowledge, helped the jury reach a decision and was properly admitted.

The case of Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351 (1960), which the plaintiff cited as disapproving accident reconstruction by expert testimony, also stated: "The qualified expert, the nonobserver, may give an opinion in answer to a proper hypothetical question in matters involving science, *787 art, skill and the like.... An automobile, like any other moving object, follows the laws of physics...." 253 N.C. at 180, 116 S.E.2d at 355. Tyner properly answered hypothetical questions here and applied the laws of physics to the post-collision movement of the two cars.

The plaintiff also attacks the directed verdict entered in favor of the defendant's husband at the close of the plaintiff's evidence. He sought to hold the husband liable under the Family Purpose Doctrine.

On a directed verdict, "the court must consider the evidence in the light most favorable to the non-movant...." Daughtry v. Turnage, 295 N.C. 543, 544, 246 S.E.2d 788, 789 (1978); W. Shuford, N.C.Civil Practice and Procedure § 50-5 (2d ed. 1981).

It is true that when considering the evidence in the light most favorable to the plaintiff at the close of his evidence, the elements of the Family Purpose Doctrine could be seen as established. That is, 1) the defendant was a member of her husband's household, 2) the car was provided for family use, and 3) the car was being used with the husband's consent at the time of the accident. See Williams v. Wachovia Bank & Trust Co., 292 N.C. 416, 419-20, 233 S.E.2d 589, 592 (1977).

But it must be shown that the defendant was negligent in the operation of the car before the husband can be held liable under the Family Purpose Doctrine. Williams, 292 N.C. at 419, 233 S.E.2d at 592. The jury here decided that the defendant was not negligent.

Although it was incorrect to grant a directed verdict in favor of the husband at the close of the plaintiff's evidence because facts sufficient to survive the motion had been shown, we find this to be harmless error under G.S. 1A-1, Rule 61. The jury verdict could not have been affected by the presence of the husband as a defendant. His liability was dependent on his wife. The real issue in the case was her negligence.

No error.

WEBB and BRASWELL, JJ., concur.