Keller v. Caldwell Furniture Co.
Keller v. Caldwell Furniture Co.
Opinion of the Court
The first five exceptions are without substantial merit. The testimony to which they relate was admissible as tending to show that the plaintiff’s injury affected his ability to perform physical labor and to earn money. Wallace v. R. R., 104 N. C., 442; Eansley v. R. R., 115 N. C., 611; Rushing v. R. R., 149 N. C., 161; Hargis v. Power Co., 175 N. C., 31. The exceptions are not within the principle, stated in Shepherd v. Lumber Co., 166 N. C., 130.
On bis direct examination Joe "Whisnant, stepfather of tbe plaintiff, testified after objection by tbe defendant, tbat Mr. Beard, superintendent of the factory, told bim tbat tbe insurance company would not allow tbe defendant to keep tbe plaintiff in its service. Exception 10.
In tbe concluding argument one of tbe counsel for tbe plaintiff used substantially tbis language: “Tbe plaintiff told (tbe defendant’s attorney) tbat the insurance company would not let bim work. What bas tbe insurance company got to do witb tbe case? Since wben bas it happened tbat tbe insurance company can say who can and who cannot work for tbe Caldwell Furniture Company? I cannot see what tbey have to do witb it.” Tbe defendant’s counsel privately requested tbe judge to tell tbe jury in bis charge “not to consider tbe insurance company.” Tbe request was overlooked. Counsel for tbe defendant was present wben tbe charge was given and did not except, but entered an exception at tbe time of settling tbe case on appeal. Exception 27-A.
Tbe defendant argued tbat tbe evidence excepted to was an indirect method of informing tbe jury tbat tbe defendant bad insurance which, in case of tbe plaintiff’s recovery, would indemnify it against loss. Tbis Court bas been insistent'in its disapproval of any attempt by tbe plaintiff, in an action for personal injury or death, to prove tbat tbe defendant bad insurance protecting it from tbe consequences of its own negligence. In Lytton A Maomfacturing Company, 157 N. C.,, 331, evidence tbat tbe defendant in an action for damages arising from personal injury was insured in a casualty company was held to be incompetent because it was entirely foreign to tbe issues raised by tbe pleadings — a position maintained in several subsequent decisions. Featherstone v. Cotton Mills, 159 N. C., 429; Starr v. Oil Company, 165 N. C., 587; Luttrell v. Hardin, 193 N. C., 265. In these cases tbe evidence was offered by tbe plaintiff. Tbe annotation in 56 A. L. R., 1418, contains an exhaustive review of tbe cases on tbis subject. On page 1432 it is said: “Tbe general rules and principles applicable to tbe question of tbe admissibility of evidence, in a negligence action, of tbe fact tbat tbe defendant therein carries liability or indemnity insurance protecting bim from tbe consequences of negligence, are settled beyond dispute, but like most other rules of evidence, tbey are subject to qualifications and
The application of the modification is given in Davis v. Shipbuilding Co., 180 N. C., 74, in which it was held, upon the defendant’s denial of the plaintiff’s employment, that the fact that the defendant held indemnity insurance for injury to its employees was competent as tending to show that the plaintiff was in its service.
In the case at bar the evidence excepted to (Exception 7) was evoked by the defendant. If a witness gives an answer which is not responsive to a question, the proper course is a motion to strike out the answer or to instruct the jury to disregard it. Hodges v. Wilson, 165 N. C., 323; Godfrey v. Power Co., 190 N. C., 24, 31. This motion was made. But the plaintiff’s answer was a direct response to the defendant’s question, “'Why did you quit?” If the answer had been confined to the words, “They ran me off,” the plaintiff’s testimony would have been subject to grave impeachment. It would have worked serious if not irreparable injustice to him to exclude the reason given by the defendant for turning him off. He was entitled to an opportunity to counteract the damaging effect of the question which was manifestly intended to weaken his testimony, by reciting in its entirety the reason given by the defendant.
On the same principle the tenth exception must be overruled. It was said in S. v. Bethea, 186 N. C., 22, that when the credibility of a witness is impugned by cross-examination tending to impeach his veracity or his relation to the cause, it is permissible to corroborate his credibility and
Exception 27-A is likewise untenable. The defendant’s counsel expressly declined to interrupt the concluding argument to the jury and relied upon his private understanding with the judge. He heard the charge, and not only failed to call attention to the court’s inadvertence, but entered no exception until the case on appeal was settled. The exception should have been taken before the verdict was returned. S. v. Tyson, 133 N. C., 692; S. v. Davenport, 156 N. C., 596, 612.
Assignments 5 and 12 include exceptions 11, 12, 13, 18, 19, 20, 28, and rest upon the assumption that Joe Whisnant and John Whisnant were permitted to say whether certain appliances were approved and in general use without qualifying as experts. The testimony of these witnesses did not involve a question of science or a conclusion to be drawn from a hypothetical statement of facts; it was elicited as a matter within their personal knowledge, experience, and observation: The exception to the general rule that witnesses cannot express an opinion is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; it includes the evidence of common observers testifying to the results of their observation. Britt v. R. R., 148 N. C., 37; Marshall v. Telephone Co., 181 N. C., 292.
Exceptions .14, 15, 16, 17. The age of the plaintiff being in controversy the court admitted in evidence the declarations of the plaintiff’s father on this point. He told John Whisnant in 1908 that the plaintiff was born 31 January, 1906. The plaintiff testified that this was the date of his birth; that his father disappeared when he was a boy, and that several years thereafter his mother married the second timé. There is a presumption that the plaintiff’s father is dead and his declaration, made ante litem motam, was competent on the fact in issue. Clements v. Hunt, 46 N. C., 400; Norris v. Edwards, 90 N. C., 383; Ewell v. Ewell, 163 N. C., 234; Jelser v. White, 183 N. C., 126; Beard v. Sovereign Lodge, 184 N. C., 154.
Assignments 13, 14, 15, 16, 17, 18 are based upon the contention that the presiding judge inadvertently disregarded the provisions of O. S.,
The court has endeavored to maintain the integrity of section 564 by the strict observance of its provisions, holding that the statute is mandatory and that any expression of opinion by the trial judge during the trial may be excepted to after the verdict is returned. S. v. Ownby, 146 N. C., 677; S. v. Rogers, 173 N. C., 755; Greene v. Newsome, 184 N. C., 77; S. v. Bryant, 189 N. C., 112; S. v. Sullivan, 193 N. C., 754.
Our interpretation of the charge does not justify the appellant’s conclusion. We have discovered nothing in the instructions which should bias a mind of ordinary firmness and intelligence or in anywise detract from the quality described by counsel for the appellant as “the fine sense of right characterizing the trial judge.”
In November, 1919, a consent judgment was signed in an action pending in the Superior Court of Caldwell County entitled “Yancey Saunders (the present plaintiff) by his next friend, Mary Whisnant, v. Caldwell Furniture Company.” The complaint was filed on behalf of the plaintiff for his injury and on behalf of his mother for the loss of his services. The judgment was not based upon an actual investigation of the facts. No answer was filed, no evidence was introduced, no issues were submitted to the jury. The judgment was signed by the judge who tried the case now under, consideration. In the present case he held that as to the plaintiff, who was then a minor, the consent judgment was void. The defendant paid the judgment by a check given to “Mary Whisnant, next friend of Yancey Keller.” The plaintiff testified that he had never received any part of the check.
The question raised by the exception has been determined adversely to the defendant’s contention. In Ferrell v. Broadway, 126 N. C., 258, the Court said: “But it may be taken to be the law that, in a case where issues are joined between infants on one side and the adverse party and no evidence is introduced, and nothing is done or said on the trial except that an agreement is entered into by the next friend or counsel of the infants, that the verdict shall be rendered against the infant, the verdict and judgment will not bind the infants. In such a case, the court would have no knowledge of the facts, and therefore could not exercise any supervision over the interest of the infants. The object in having a next friend appointed for infants is to have their rights and
The remaining exceptions, including the motion for nonsuit, call for no discussion. We find
No error.
Reference
- Full Case Name
- YANCEY KELLER v. CALDWELL FURNITURE COMPANY
- Cited By
- 7 cases
- Status
- Published