Hatcher v. Clayton

88 S.E.2d 104 (1955)

242 N.C. 450

Garnet HATCHER v. Luther J. CLAYTON and Owen Pass.

No. 747.

Supreme Court of North Carolina.

June 30, 1955.

*107 Donald J. Dorey, Roxboro, Beam & Beam, Louisburg, and Gholson & Gholson, Henderson, for plaintiff, appellee.

R. B. Dawes and Davis & Davis, Roxboro, for defendant Pass, appellant.

BOBBITT, Justice.

The evidence, when considered in the light most favorable to plaintiff, was sufficient in our opinion to warrant submission thereof to the jury on the issue as to the alleged negligence of Clayton. Admittedly, Pass owned the truck operated by Clayton. Such admission was sufficient to require submission of the issue of agency to the jury. G.S. § 20-71.1; Davis v. Lawrence, N.C., 87 S.E.2d 915, and cases cited. Assignments of error directed to the denial of appellant's motions for judgment of nonsuit are overruled. Indeed, they are deemed abandoned; for no reason or argument is stated and no authority is cited in appellant's brief in support thereof. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544; State v. Cole, 241 N.C. 576, 86 S.E.2d 203.

The charge of the trial court was not included in the record on appeal. Hence, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. State v. Harrison, 239 N.C. 659, 80 S.E.2d 481; Todd v. Mackie, 160 N.C. 352, 76 S.E. 245.

Appellant's assignments of error No. 3 and No. 4 are based on exceptions 7-12, inclusive. Assignment No. 3 asserts that the court erred in excluding testimony of Clayton, the alleged agent; and assignment No. 4 asserts that the court erred in denying to appellant his right to a full crossexamination of Clayton.

As to exceptions 7, 8, 10 and 11, relating to instances where the court sustained objections to questions asked Clayton by appellant's counsel, the record fails to show what the witness would have testified had he been permitted to answer. Hence, there is no basis for a consideration of these exceptions. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; State v. Poolos, 241 N.C. 382, 85 S.E.2d 342.

The question involved in exception 9 is as follows: "Mr. Clayton, state whether or not Mr. Pass gave you any instructions on the afternoon of the 7th of December through the 8th of December when you came back in respect to performing any service for him?" If the witness had been permitted to answer, he would have said, "No."

The question involved in exception 12 is as follows: "Mr. Clayton, at the time this accident occurred on December 8, 1950, were you performing any service for the defendant, Owen Pass?" If the witness had been permitted to answer, he would have said, "No."

While the defendants filed separate answers, they made common cause in the defense of plaintiff's action. Thus, when Clayton, after direct examination by his separate counsel, was turned over to appellant's counsel for examination, the true character of such examination was that of further direct examination rather than cross-examination. No attempt was made by appellant's counsel to impeach Clayton or discredit his testimony.

The court permitted Clayton, while under examination by appellant's counsel, to testify that he performed no work for Pass from the time he got home on the afternoon of 7 December, 1950, until he left home on 8 December, 1950. Moreover, Clayton testified that he was using the Pass truck "for transportation," that is, as a means of travel between his home and his place of work. Too, when examined by his own separate counsel, Clayton gave detailed testimony of the arrangements he had made with Breeze, appellant's foreman, as to Clayton's use of the Pass truck. All the evidence tended to show that there was no conversation or arrangement between Clayton and Pass, personally, with reference to plaintiff's use of the Pass truck. Moreover, the question involved in exception 9 would seem to require a "yes" *108 or "no" answer to a conclusion rather than a fact.

No prejudicial error being made to appear, said assignments of error No. 3 and No. 4 are overruled.

Assignments of error No. 1 and No. 2 are based on exceptions 1-5, inclusive. These assignments assert that the court erred in permitting Harold Hatcher to testify, concerning footprints and tire tracks and marks, as set out below.

Harold Hatcher, plaintiff's son, testified that Clayton came to his house about 7:30 a. m. and told him "that he had hit my father with the truck"; that he went first to the hospital to see his father; that, upon leaving the hospital, he went to the place where the accident occurred; and that his observations there were made between 10 and 10:15 a. m. He testified, over objection by appellant, as follows: "On the morning of the accident I went down Pointer Street to No. 501 and, as I said awhile ago, I saw the footprints of a man. I saw the tracks there. They were approximately six to eight feet off the west side of the hard surface * * * Later on, I saw the tracks, the marks of a dual wheel truck where they had run off the hard surface. It first ran off approximately 45 feet from where the footprints of a man were."

Appellant contends that Harold Hatcher's testimony, set out above, should have been excluded on the ground that the footprints were not sufficiently identified as plaintiff's footprints and the tracks were not sufficiently identified as those of Pass' dual wheel truck, citing McAbee v. Love, 238 N.C. 560, 78 S.E.2d 405; State v. Palmer, 230 N.C. 205, 52 S.E.2d 908; State v. Ormond, 211 N.C. 437, 191 S.E. 22; Goss v. Williams, 196 N.C. 213, 145 S.E. 169; State v. Young, 187 N.C. 698, 122 S.E. 667; Annotation: Admissibility of evidence as to tire tracks or marks on or near highway, 23 A.L.R.2d 112 et seq.

But this testimony was not offered to identify the Pass dual wheel truck as the vehicle that struck and injured plaintiff. This was admitted. The case, in point of fact, turned largely on this crucial question, viz.: Was plaintiff on the west shoulder of the highway when struck as contended by him or on the hard surfaced portion thereof as contended by appellant?

Conceding that Harold Hatcher's testimony was insufficient to identify the footprints and the dual wheel tracks, yet testimony as to a man's footprints and as to dual wheel tracks where plaintiff contended he was standing when hit was relevant and competent as tending to corroborate the testimony of plaintiff; and testimony as to the absence of a man's footprints and of dual wheel tracks at such location was relevant and competent as tending to corroborate the testimony of defense witnesses. Harold Hatcher did not attempt to identify the footprints and the dual wheel tracks. The significance of the testimony is in the fact that a failure to show the presence of, as well as testimony tending to show the absence of, any such footprints and tracks on the shoulder of the highway after a rain would be a circumstance tending strongly to discredit plaintiff's testimony. Harold Hatcher's testimony, being relevant and competent as corroborative evidence as indicated, was properly admitted. The appellant was entitled, had he so requested, to have the jury instructed to consider this testimony only, for the restricted purpose of corroboration. Stansbury, N.C. Evidence, sec. 79. In the absence of such request, its admission without restriction cannot be successfully challenged. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558; State v. Cole, supra; State v. Eason, 242 N.C. 59, 86 S.E.2d 774; State v. Ham, 224 N.C. 128, 29 S.E.2d 449.

As stated above, there was sharp conflict in the evidence. The issues were duly submitted to the jury under instructions presumed correct. The verdict and judgment must be upheld, for we find no error in law sufficient to warrant a new trial.

No error.