Moore v. Bezalla

84 S.E.2d 817 (1954)

241 N.C. 190

Rena Harper MOORE, Administratrix of the Estate of James Oliver Harper, v. Neta T. BEZALLA and Michael Bezalla.

No. 386.

Supreme Court of North Carolina.

December 1, 1954.

*820 Ottway Burton, Asheville, for plaintiff-appellant.

H. M. Robins, Asheville, for defendants-appellees.

HIGGINS, Justice.

The first three exceptions and assignments of error relate to the refusal of the court to permit plaintiff's counsel to state to the jury on the voir dire, "If there is any member of the jury that is a policyholder, holding an automobile liability insurance policy with the Farm Bureau Mutual Automobile Insurance Company, as of December 24, 1953, please excuse themselves." The record discloses the defendants had such a policy on the Studebaker. The record also discloses: "The defendants' attorney furnished the court and plaintiff's attorney with a list of all policyholders of the Farm Bureau Mutual Automobile Insurance Company on the jury list for the second week of the Superior Court of Randolph County; whereupon his Honor, Judge C. W. Hall, directed that none of the jurors on the list furnished by the attorney for the defendants be called on the jury for the trial of this case." The record also discloses that all the policyholders in defendants' insurance carrier had been left off the panel by order of the judge. Plaintiff's attorney offered to introduce evidence out of the presence of the jury that a policyholder of Farm Bureau Mutual Automobile Insurance Company as of December 24, 1953, would have a financial interest in the verdict in the case. This evidence the court declined to hear. The court had been careful to remove from the panel all policyholders as of the date of the trial. If a policyholder at the date of the accident was not a policyholder at the date of the trial and judgment, there is nothing in the record indicating he would have any financial interest in a company in which he no longer held a policy. The refusal to permit the inquiry of the jury and to hear the evidence with respect to policyholders as of December 24, 1953, was proper and in accordance with the decisions of this Court. Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726. The plaintiff's request to the jurors to excuse themselves related to policyholders as of December 24, 1953, and not to agents or employees of the insurance carrier. For the distinction, see Fulcher *821 v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9.

The plaintiff objected to the submission of the issue charging contributory negligence on the part of plaintiff's intestate. There was evidence that the defendants' automobile at no time left the hard surface or main-traveled portion of the highway, or that the automobile was ever on the driver's wrong side. The defendants were traveling toward the sun, Mr. Harper away from it. Evidence indicated he could see the approach of defendants' automobile for a distance of 500 to 700 feet if he had been alert for his own safety or observing the rule required of pedestrians in such circumstances. There was evidence that plaintiff's intestate was three or four feet on the hard surface when the witness Bowman met defendants' car 300 feet from the scene of the accident. It was a legitimate inference that he never yielded the right of way as it was his duty to do. Spencer v. McDowell Motor Co., 236 N.C. 239, 72 S.E.2d 598; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Miller v. Lewis and Holmes Motor Freight Corp., 218 N.C. 464, 11 S.E.2d 300. The evidence was sufficient to require the submission of the issue of contributory negligence.

J. D. Lucas, witness for the defendants, testified he saw Oliver Harper about three o'clock and again a few minutes later. The witness was then asked the following question by defense counsel: "What was his condition with reference to being sober or drunk?" The answer was, "He was intoxicated." The question and answer were objected to on the ground the time was too remote. There was other evidence of intoxication almost up to the time of the accident. Harper's condition as to intoxication at the time of the accident was material on the question of his contributory negligence. What his condition was less than an hour and a half prior to the accident had some bearing on his condition at the time of the accident. The weight of the evidence was for the jury. Plaintiff's exception to the admissibility of this evidence cannot be sustained.

Plaintiff's exceptions 6, 7, 8, and 9 relate to the evidence offered by the defendants that the plaintiff's witness Penn Farlow was of bad character. Penn Farlow had testified for the plaintiff that shortly before the accident he saw the Bezalla car and that it was being operated in his opinion at 60 miles per hour, and that the highway was 18 feet wide. This evidence on the part of Farlow related not to the question of contributory negligence on the part of Harper, but related to the negligence of the defendants. Since the issue on which the witness Farlow gave testimony was answered in favor of the plaintiff, the objection is unavailing. Witness Farlow had testified for the plaintiff that the defendants were driving 60 miles per hour, and it was proper for the defendants to present evidence of his bad character. Morgan v. Carolina Coach Co., 228 N.C. 280, 45 S.E.2d 339. The objection to this evidence cannot be sustained.

Colon Green, a witness for defendants, testified he saw Harper on the afternoon of December 24, 1953, about an hour before he was killed, and about a half-mile from the place where he was killed. He was walking in the middle of the road. He testified that he saw Mrs. Bezalla pass and she was traveling about 35 or 40 miles per hour. On cross-examination, he was asked if he had not talked to Tom Maness and he testified he didn't remember, he could have. He did not remember stating that Mrs. Bezalla was making 70 miles an hour. Tom Maness was called as a witness for plaintiff on rebuttal, saying, "The best I remember, he (Colon Green) told me that she (Mrs. Bezalla) was flying, making about 70 miles an hour. He came back in a few days, may have been the next day, and wanted to know what he had told me, and I told him the best I knew." After Maness testified, Green was recalled as a witness by the defendants and permitted to testify over plaintiff's objection. When recalled, Green admitted he had talked to Maness about the accident, telling him who was run over and who the driver was. He denied the other statements attributed to him by Maness. *822 Plaintiff's exceptions 10, 11 and 12 relate to the court's permitting Green to be recalled as a witness and to reply to the testimony of the plaintiff's witness Maness. Whether a witness may be recalled is in the sound discretion of the trial judge. The evidence of Green in explanation and contradiction of the testimony given by Maness was clearly competent. These exceptions cannot be sustained.

In the charge, the judge read to the jury G.S. § 20-174, subsections (a), (b), and (e), and followed the reading with this instruction: "I instruct you, gentlemen of the jury, that the violation of that section of the statute would not constitute negligence per se, but would be evidence to be considered along with other evidence of negligence." The foregoing is the basis of plaintiff's exception No. 13. The charge was in accordance with the decisions of this Court, and the exception cannot be sustained. Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323, and cases cited.

Exceptions 14, 15, 16 and 17 relate to the statement of contentions of the parties. The statements were unobjected to and not brought to the court's attention in apt time, and, therefore, are unavailing. Blanton v. Carolina Dairy, 238 N.C. 382, 7 S.E.2d 922.

Exception No. 18 is to that portion of the charge as follows: "If you are satisfied by the greater weight of the evidence that the deceased, Mr. Harper, by his own negligence contributed to his death, as I have defined contributory negligence to you, it would then be your duty to answer that second issue, `Yes;' but if you are not so satisfied, it would be your duty to answer it `No.'" The judge fixed the quantum of proof and placed the burden thereof in accordance with the decisions of this Court.

The record discloses the case was carefully tried. The verdict of the jury was supported by competent evidence.

No error.