Wentz v. Unifi, Inc.

365 S.E.2d 198 (1988)

Joe D. WENTZ v. UNIFI, INC. and Norris Lee Blevins.

No. 8726SC551.

Court of Appeals of North Carolina.

March 1, 1988.

*200 Moore & Van Allen by Randel E. Phillips and Charles E. Johnson, Charlotte, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by Edward L. Eatman, Jr. and Mark C. Kurdys, Charlotte, for defendants-appellees.

WELLS, Judge.

Plaintiff, in his first argument contends that because of the factual inconsistencies between the plaintiff's and defendants' pleadings, the trial court committed error in submitting the issue of contributory negligence to the jury. Relying on Dennis v. VonCannon, 272 N.C. 446, 158 S.E.2d 489 (1968) and Jackson v. McBride, 270 N.C. 367, 154 S.E.2d 468 (1967), plaintiff argues that acceptance of the facts which he alleges in his complaint must necessarily preclude the acceptance of facts alleged by defendants in their answers thereby negating defendants' affirmative defense of contributory negligence. We disagree.

The overriding concerns in both Dennis and VonCannon were premised upon the earlier pleading rules that any material variance between the pleadings and the proof offered at trial constituted a failure of proof. Where the complaint set forth facts indicating defendant's negligence, the facts asserted in defendant's answer to support the affirmative defense of contributory negligence were required to concur with, but not negate, the facts asserted by plaintiff. If defendant asserted facts logically irreconcilable with those in the complaint, defendant's defense of contributory negligence could not prevail and was defeated on its pleadings. This, however, is no longer the law.

North Carolina has since adopted the Rules of Civil Procedure, Chapter 1A-1 of the General Statutes (1967), which abolished the rigid and strict technical requirements of form pleading and replaced these requirements with the more liberal and flexible requirements of notice pleading. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Smith v. City of Charlotte, 79 N.C.App. 517, 339 S.E.2d 844 (1986); Note, "Specificity in Pleading Under N.C. Rule 8(a)(1)," 48 N.C.L.Rev. 636 (1970). The adoption of the notice theory of pleading indicated the legislature's intention that controversies be resolved on their merits, "... following an opportunity for discovery, rather than resolving them on technicalities of pleading." Smith, 79 N.C. App. at 528, 339 S.E.2d at 851.

In the present case, the parties' pleadings were sufficient to give notice of all theories, claims and facts sought to be proven by each party. We therefore hold that the trial court did not err in submitting the issue of contributory negligence to *201 the jury. Plaintiff's first argument is overruled.

As the second part of his argument, plaintiff contends that even if the issue of contributory negligence were properly submitted to the jury, the evidence was insufficient to have supported a finding thereof.

While defendant bears the burden of proving contributory negligence, the defendant is entitled to have the issue submitted to the jury if all the evidence and reasonable inferences drawn therefrom and viewed in the light most favorable to defendant tend to establish or suggest contributory negligence. Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970); Coppley v. Carter, 10 N.C.App. 512, 179 S.E.2d 118 (1971). In the case before us, the evidence presented the question of whether defendant Blevins actually caused plaintiff to lose control of the car or whether plaintiff lost contol first and swerved in front of defendant. There was substantial evidence tending to show that plaintiff was negligent in not keeping a proper lookout and not keeping his car under proper control, allowing it to swerve or drift into Blevins' lane of travel. Such evidence was sufficient for the jury to have found contributory negligence. Plaintiff's argument regarding the sufficiency of the evidence to support a finding of contributory negligence is overruled.

Plaintiff next argues that the trial court erred by admitting evidence of defendant Blevins' prior good driving record. While Rule 404(b) of the N.C. Rules of Evidence prohibits admission of evidence of prior specific acts to show conformity therewith and evidence of a party's prior driving record is inadmissible in automobile cases, Rouse v. Huffman, 8 N.C.App. 307, 174 S.E.2d 68 (1970), our concern on review is whether the admission constituted prejudice. N.C.Gen.Stat. § 1A-1, Rule 61 of the Rules of Civil Procedure, Broyhill v. Coppage, 79 N.C.App. 221, 339 S.E.2d 32 (1986). Because the jury found the defendant negligent, we cannot see how the admission of defendant's good driving record could have influenced the jury's verdict to plaintiff's detriment. We therefore find no prejudicial error.

In his next argument, plaintiff contends the trial court erred by admitting Patrolman Yates' two accident reports because each contained inadmissible hearsay and speculative opinions as to the positions of the vehicles involved in the collision. We disagree.

Under N.C.Gen.Stat. § 8C, Rule 803(6) (1986) of the N.C. Rules of Evidence, "Records of Regularly Conducted Activity," highway accident reports may be admissible, as a business records exception to the hearsay rule. To be admissible such reports must be authenticated by their writer, prepared at or near the time of the act(s) reported, by or from information transmitted by a person with knowledge of the act(s), kept in the course of a regularly conducted business activity, with such being a regular practice of that business activity unless the circumstances surrounding the report indicate a lack of trustworthiness. Fisher v. Thompson, 50 N.C.App. 724, 275 S.E.2d 507 (1981). Such reports may also be admissible as "official" reports under Rule 803(8), "Public Records and Reports," if properly authenticated.

In the present case, the reports were fully authenticated and a proper foundation laid by Trooper Yates' testimony. He stated that he had observed the scene of the accident, had spoken with both drivers and later prepared the first report as part of the standard protocol required of patrol officersall of which complied with the business records exception.

Plaintiff contends that the reports were inadmissible because they were inherently untrustworthy. Because Yates did not actually witness the collision plaintiff claims the reports were unreliable and therefore incompetent as evidence. The business records exception expressly provides for the use of information from those having first-hand knowledge of the incident in question. Trooper Yates was entitled to report his understanding of the accident as told to him by both plaintiff and defendant. Our careful review of the reports and testimony persuades us that Patrolman Yates *202 did not express an opinion as to how the collision occurred, but merely reported the versions given to him by plaintiff and Blevins during his investigation. In his cross-examination by plaintiff, Patrolman Yates clearly disavowed any assessment of fault on the part of plaintiff. We also note that Yates was allowed to testify as to the contents of his first report without objection by plaintiff, and that the contents of the second report, to which plaintiff did object, clearly gave plaintiff's version of the collision. We fail to see how plaintiff was prejudiced by these reports.

Finally, plaintiff argues that the trial court erred in refusing to allow plaintiff to introduce evidence to rebut defendant's implication that plaintiff had deliberately excluded a second set of skid marks located in the left lane purportedly indicating that defendant's tractor-trailer had tried to stop well before impact. Plaintiff sought to put before the jury the fact that defendant Unifi made its own investigative photos of the accident site. Plaintiff argues that if the skid marks actually existed in the left lane, as defendants claimed, then defendant Unifi would have had photos of those marks and introduced them into evidence. We disagree for several reasons.

Rulings by the trial court regarding the admission of rebuttal evidence are reversible only by a showing of clear abuse of the trial court's discretion, Gay v. Walter, 58 N.C.App. 360, 283 S.E.2d 797 (1981), on rehearing, 58 N.C.App. 813, 294 S.E.2d 769 (1982). Moreover, plaintiff must show that the trial court's denial of plaintiff's request to introduce rebuttal evidence in some way prejudiced plaintiff's case. Broyhill v. Coppage, supra. In re Lee, 69 N.C.App. 277, 317 S.E.2d 75 (1984).

The evidence plaintiff sought to introduce, while possibly helpful to his case, was collateral to the primary issue and too remote in terms of relevancy to have required its admission. At most, the trial court was entitled but not required to have allowed plaintiff's request and its denial, therefore, did not constitute abuse of discretion. Secondly, even if the evidence should have been introduced, it is not at all clear that making the jury aware of the existence of Unifi's photos would have affected their decision. Accordingly, we find

No Error.

PARKER and ORR, JJ., concur.