Fisher v. Thompson

VAUGHN, Judge. Plaintiff brings forward many assignments of error regarding evidentiary matters at trial and the judge’s refusal to set aside the verdict. At the outset, we must cite plaintiff’s counsel with multiple violations of the Rules of Appellate Procedure. Exceptions nos. 6, 18, 37, 42, 43, 44, 45, 46 and 48 are deemed abandoned because they are not supported in the brief with some reason, argument or authority. App. R. 28(b)(3). Arguments in support of Exception no. 40 cannot be considered since it is not made the basis of an assignment of error in the record, App. R. 10(c), and it is not set out in the brief, App. R. 28(b)(3). Exceptions nos. 48,49 and 50 are also abandoned because they are not set out in the brief. Finally, arguments supporting exceptions nos. 8, 9,10,11,12 and 13 on the ground of irrelevancy must be ignored because they are not assigned as error in the record on this basis, nor are they appropriately set out in the brief under the pertinent issue. App. R. 10(c), 28(b)(3). We shall now examine the exceptions which were properly preserved for appellate review. First, plaintiff argues that the court should have allowed the investigating officer to read to the jury the accident report in its entirety. Officer Smith testified that he prepared the report in the normal course of his employment and that it was standard procedure to do so shortly after investigating an accident. He authenticated the report by identifying the handwriting thereon as his own. Thus, it appears that the contents of the report qualified for admission under the hearsay exception for entries made in the regular course of business. See 1 Stansbury, N.C. Evidence § 155 (Brandis rev. 1973); see generally Annot., 77 A.L.R. 3d 115 (1977). In State v. Connley, the Court held that oral dispatches from a trooper to the Virginia State Police control station were admissible in the same way written entries in the regular course of business were but noted that: [the] portion of these dispatches which reported defendant’s threat to kill Fisher [trooper] if anyone attempted to impede their progress to Atlanta is a classic example of “double hearsay”. “[T]here is no good reason why a hearsay declaration, which *728 within itself contains a hearsay statement, should not be admissible to prove the truth of the included statement, if both the statement and the included statement meet the tests of an exception to the hearsay rule. 295 N.C. 327, 344-45, 245 S.E. 2d 663, 673-74 (1978), modified on other grounds, 297 N.C. 584, 256 S.E. 2d 234, cert. denied, 444 U.S. 954 (1979). Here, the judge excluded the portion of the accident report which recorded Dawkins’ statement that defendant ran the red light. Plaintiff suggests that the evidence was admissible as res gestae. We must disagree. Even though the officer arrived on the scene within five minutes of the accident, that lapse of time is sufficient to remove the statement from the realm of spontaneous utterances. See State v. Sparks, 297 N.C. 314, 255 S.E. 2d 373 (1979); Gray v. Insurance Co., 254 N.C. 286, 118 S.E. 2d 909 (1961); State v. Murray, 21 N.C. App. 573, 205 S.E. 2d 587 (1974). Dawkins’ statement to Officer Smith as recorded in the report was “hearsay within hearsay”; nevertheless, it was probably competent as past recollection recorded. Officer Smith remembered filling out the report, but said he had no present independent memory of the events or conversation contained therein apart from the writing itself. Without question, the requirements for admission as past recollection recorded were met. See 1 Stansbury, N.C. Evidence § 33 (Brandis rev. 1973). In State v. Holloway, our Court applied this rule of evidence to permit “a police officer to testify on rebuttal from police notes typed by a third person some three months after the alleged homicide and to read from the police records alleging statements that the defendant had made.” 16 N.C. App. 266, 271, 192 S.E. 2d 75, 79 (1972). The accident report in this case is certainly more trustworthy since it was in the officer’s own handwriting and had been prepared shortly after the investigation. Moreover, it is significant that the Court in Holloway, supra, did not even discuss the possibility of a double hearsay problem and admitted the entire police record, including statements made by defendant, as past recollection recorded. As a general matter then, the accident report should have been admitted. This error does not, however, require a new trial unless plaintiff’s case was adversely affected by the exclusion. G.S. 1A-1, Rule 61. The critical portions of the report which plaintiff sought to *729 introduce were: (1) the eyewitness’s statement to the officer that defendant ran the red light and (2) the name of the person who was given a ticket for running a red light. We hold that the record demonstrates that plaintiff did not suffer any prejudice. In his direct testimony, Dawkins confirmed that he had talked with the officer and, consistent with that prior statement, affirmatively and repeatedly testified that defendant had run a red light while plaintiff’s light was green. In addition, it appears, on page 43 of the record, that the judge later repented from his earlier ruling excluding that portion of the report recording Dawkins’ statement. Plaintiff’s counsel read the following to the jury: MR. DOWNER: From the police officer’s report: “The witness stated he was behind the vehicle and that vehicle number 1 ran the red light.” That was the only part we wanted to get in. That was from the official report at the time of the accident. It is obvious that no prejudicial error was committed in this regard. It is equally clear that the judge acted properly when he refused to allow Officer Smith to read from the accident report the name of the person cited for a traffic offense. The following developed during the direct examination of the officer: I did have an opportunity to make any arrests or give any tickets or citations at the time of this accident. A. I cited Mrs. Fisher. A. Correction. MR. WALKER: OBJECTION. COURT: OVERRULED. A. Mrs. Frazier. Correction. Q. Well, strike that question, strike that question. There’s a mistake on the report. MR. WALKER: Well, I OBJECT to him saying there’s a mistake on the report. Q. Well, okay, go ahead and read it, the name that you have under the arrest. A. On the arrest_ MR. WALKER: Well, I OBJECT to him reading anybody’s name under the arrest. COURT: SUSTAINED. *730 Plaintiff has no grounds for complaint. Her own counsel requested that his question, asking the name of the person that had been given a ticket, be stricken because of the apparent mistake on the report. It was, in fact, beneficial to plaintiff that Officer Smith was not permitted to testify further on this point. Plaintiff, nevertheless, contends on appeal that the officer should have been allowed to correct the mistake on the report. The excerpt from the record, supra, shows that no such request was made at trial. Plaintiff, in her brief, has not cited any authority for the proposition that a witness, who has no present memory of an event apart from a writing, may correct a portion of that writing in his oral testimony. The theory supporting admission of the accident report, as a business record or past recollection recorded, is that a written account of an event entered by a witness at a time near to that of the occurrence is inherently trustworthy and reliable. It would, therefore, be incongruous to hold that Officer Smith, who did not have a present recollection of the accident, should have been permitted to correct an alleged mistake on the report. Even if an oral correction of a written report were proper, plaintiff could not have been prejudiced by its exclusion since defendant admitted in her testimony that the officer had given her a ticket for running a red light and that she had pled guilty to the charge in a subsequent court appearance. Plaintiff next argues that defense counsel improperly elicited irrelevant testimony on several occasions. To receive a new trial on this ground, plaintiff must demonstrate the following: (1) that the evidence did not have any logical tendency to prove a fact in issue and (2) that its improper admission misled the jury or prejudiced her case. See State v. Arnold, 284 N.C. 41, 199 S.E. 2d 423 (1973); 1 Stansbury, N.C. Evidence § 77, at 234-35 (Brandis rev. 1973). The two-part test for a new trial has not been met in this case. On cross-examination, plaintiff was asked what treatment she had received for her injury from the earlier automobile accident in February. We cannot say that a description of her prior treatment lacked any tendency to prove a fact in issue: to wit, whether the injuries, for which she was presently seeking damages from defendant, were proximately caused by the March accident. Plaintiff contended at trial that only her neck was injured in February and that her back injuries were entirely due to the wreck involving defendant in March. The same chiropractor, Dr. Carlisle, treated *731 plaintiff in connection with both incidents. A comparison of the types of treatment she received after each accident tended to present some evidence to the jury from which it might have inferred that the March accident had caused, at most, an aggravation of preexisting injuries. In addition (as is true with other evidence to which plaintiff takes exception, infra), this evidence, even if improperly admitted, could not have prejudiced her case since it related to the issue of damages, not liability, which the jury did not reach by reason of its conclusion that plaintiff was contributorily negligent. Plaintiff also objected to questions about whether she had received her full salary, during her absence from work as a schoolteacher, because she had sick leave. She contends that evidence of her sick leave pay violated the collateral source rule. We agree. “Evidence of plaintiff’^ receipt of benefits from his injury or disability from collateral sources generally is not admissible to reduce his claim for damages.” 1 Jones, Evidence § 4.48, at 480-81 (6th ed. 1972). The majority rule excludes evidence of the wages, salary or commissions paid to the plaintiff by an employer during the period of disability, regardless of whether such payments were gratuitous or in discharge of a legal obligation. Annot., 7 A.L.R. 3d 516, 520 (1966). A tort-feasor should not be permitted to reduce his own liability for damages by the amount of compensation the injured party receives from an independent source. We believe that proper enforcement of this policy requires that sick leave benefits be included within the protection of the collateral source rule. Authority in other jurisdictions supports this view. 7 A.L.R. 3d 516, supra, at 120 (Supp. 1980). Even though this evidence concerning plaintiffs sick leave was irrelevant, the error was not prejudicial because it, too, only concerned the issue of damages. Plaintiff was asked several times whether her present counsel, Mr. Downer, had also represented her with respect to the claim arising out of the February accident. This was not germane to any of the facts in issue. Nevertheless, the error was harmless, and it appears that counsel waived his objections by stipulating to the court, in the presence of the jury, as follows: Your Honor, I will stipulate that I represented Mrs. Fisher and consulted with her concerning the accident in February, the automobile accident she had on February 10th. I will also stipulate that I also represented her in the *732 accident that she had on March 22nd. I hope that Pm her family lawyer. Exceptions nos. 29, 30, 31, 32, 33 and 34 are, therefore, overruled. Defense counsel also questioned plaintiff about the amount of the settlement she received for the February accident. Of course, this was improper and totally irrelevant to the claim concerning the March wreck. Plaintiffs exceptions on this point are not, however, well taken. The record before us (pages 39 and 40) discloses that the jury was not even in the courtroom during this part of her testimony. Plaintiffs case could not have been affected by it, and exceptions nos. 35 and 36 are overruled. The question asking Dr. Carlisle how much he charged plaintiff for treating her injuries from the February accident was not irrelevant. He stated that he charged her $232.00 in connection with the first accident and approximately $700.00 for treatment of injuries from the second one. Since he treated her for both accidents, this testimony was related to the issue of damages in that it tended to show whether the medical expenses being claimed by plaintiff as part of her total compensation were reasonable. Plaintiff next contends that defense counsel improperly used leading questions. On cross-examination of his own client (who had been called as an adverse witness for plaintiff), defense counsel asked two leading questions (see exceptions nos. 9 and 10). The general rule is that leading questions may be asked on cross-examination, but the cross-examiner may be barred from doing so “when the witness is not in fact unwilling or hostile.” 1 Stansbury, N.C. Evidence § 31, at 84 (Brandis rev. 1973). Even so, the rulings of the judge on the use of leading questions are discretionary and may not be reversed absent an abuse of that discretion. Id. at 85. No such abuse exists here. In addition, we specifically find that the questions identified by exceptions nos. 8 and 11 are not leading and that exceptions nos. 12 and 13 could not have been taken to the form of the questions. We shall now consider plaintiffs contentions about the improper admission of hearsay testimony. Defendant was allowed to testify to the following: I was sitting over there at the hospital talking, I heard the Plaintiff say that she didn’t have to worry about this accident, that they said I was in the wrong. *733 Q. She said that the other person didn’t have to worry about it because of what? A. Because the officer said that I was in the wrong, and she was going to get a lot of money out of this accident. MR. DOWNER: OBJECTION. COURT: OVERRULED. Q. She mentioned having been in another one? MR. DOWNER: OBJECTION. COURT: OVERRULED. Q. Did she have any conversation with someone in your presence about any other accident other than this one? A. The third party — MR. DOWNER: OBJECTION. COURT: OVERRULED. Q. Go ahead. A. She had, with the third party. They were talking. Q. What did you hear the third party say to the Plaintiff. MR. DOWNER: OBJECTION. COURT: OVERRULED. Q. Go ahead. A. He told her that she had been in an accident not long ago, and that’s the second car she had torn up. MR. DOWNER: OBJECTION. Move to strike. COURT: Denied. Q. Go ahead. A. He told her not to worry about it, she was going to get some money out of this. MR. DOWNER: OBJECTION. Move to strike. COURT: Denied. It is clear that defendant had already begun testifying about the content of plaintiff’s conversation with a third party before counsel interposed his first objection to this line of questioning. Nevertheless, we have considered the substance of plaintiff’s objections and find that they were all properly overruled. As a general matter, the declarations of a party to a suit, if pertinent and not subject to exclusion by a specific rule, are always admissible against him. State v. Willard, 293 N.C. 394, 404, 238 S.E. 2d 509, 516 (1977); Stone v. Guion, 222 N.C. 548, 550, 23 S.E. 2d *734 907, 908 (1943); Tredwell v. Graham, 88 N.C. 208, 216 (1883). To be admissible, a party’s utterances need not have been against his interest when made. State v. Cobb, 295 N.C. 1, 14, 243 S.E. 2d 759, 766-67 (1978). Plaintiff’s statement, that she would get a lot of money out of the accident, was, however, sufficiently against her interest to qualify as an admission of a party-opponent. The rationale for this exception to the hearsay rule is that it would be illogical “to permit a party to object to the reception of his own declarations on the ground of hearsay.” 2 Stansbury, N.C. Evidence § 167, at 6 (Brandis rev. 1973). It would, therefore, be inappropriate to exclude what plaintiff said as hearsay. We note, in addition, that defendant’s testimony that plaintiff told the third party that defendant was in the wrong could not have prejudiced plaintiffs case since it actually reinforced defendant’s previous admission that she had been given a ticket for running a red light. The introduction of the third party’s statement, through defendant’s testimony, that this was the second car plaintiff had “torn up,” was also not objectionable. The statement was not offered to prove the truth of the matter asserted, but only for the mere purpose of showing that the statement was made. Declarations offered for nonhearsay purposes are always admissible. See Spillman v. Hospital, 30 N.C. App. 406, 227 S.E. 2d 292 (1976); 1 Stansbury, N.C. Evidence § 141 (Brandis rev. 1973). Moreover, even if we were to assume that the statement should have been excluded, the error would not have been prejudicial since plaintiff later testified, at length, about the earlier accident in February. In sum, we question the sincerity of plaintiff’s concern with this testimony on appeal since she made no attempt whatsoever to discredit it at trial, though she was free to rebut any of its possible implications in her later testimony. Plaintiff also claims that a question asking her what injury she sustained in the prior accident was improper hearsay. We disagree. The classic definition of hearsay isthat“[e]vidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.” Chandler v. Jones, 173 N.C. 427, 428, 92 S.E. 145, 146 (1917) (emphasis added). Plaintiff was obviously qualified to give a general description of her injuries, and such testimony cannot be characterized as hearsay. The exception to the question about the number of x-rays done by Dr. Carlisle has no merit since plaintiff did not answer it. *735 Dr. Carlisle testified as a medical expert in the field of chiropractic for plaintiff. He stated that he requested an orthopedic surgeon, Dr. McBryde, to examine plaintiff and x-ray her lower back. An objection by defendant to the following question was sustained: “What if anything, did Dr. McBryde confer with you on concerning this accident?” Plaintiff contends that the question should have been allowed and cites Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979). In Booker, the Court held that it was not error to permit a testifying doctor to base his opinion in part on a medical history received from another treating physician. The Court reasoned that “medical information obtained from a fellow-physician who has treated the same patient [is] ‘inherently reliable.’” Id. at 479, 256 S.E. 2d at 202. On the record before us, we hold that Booker is inapposite. Strictly speaking, the question asked Dr. Carlisle what Dr. McBryde said and was not a request for him to form an opinion based on information received from another treating physician. In any event, we could not sustain an exception to the exclusion of evidence when the record does not disclose what that excluded evidence would have been. State v. Hedrick, 289 N.C. 232, 237, 221 S.E. 2d 350, 354 (1976); Service Co. v. Sales Co., 259 N.C. 400, 411, 131 S.E. 2d 9, 18 (1963). Plaintiff’s final assignment of error is to the judge’s refusal to grant her motion to set aside the verdict as being against the greater weight of the evidence. This motion is addressed to the judge’s sound discretion, and we may not reverse his ruling thereon unless a manifest abuse of discretion is shown. Britt v. Allen, 291 N.C. 630, 231 S.E. 2d 607 (1977); see also Mumford v. Hutton & Bourbonnais Co., 47 N.C. App. 440, 267 S.E. 2d 511 (1980). Both plaintiff and an eyewitness testified that defendant caused the collision by running a red light. Defendant admitted she was given a ticket for this and pled guilty to the charge. She, nevertheless, repeatedly denied that she had actually run the light but testified that a slow-down in her lane of traffic had caused her to be caught under the light as it turned red. Defendant also elicited some evidence from the eyewitness indicating that plaintiff may have been speeding when she crossed the intersection. Viewed in this light, the judge did not abuse his discretion in refusing to set aside the jury’s verdict which was duly rendered upon sufficient competent evidence. We conclude the trial was free from prejudicial error and *736 overrule all assignments of error. No error. Chief Judge MORRIS and Judge BECTON concur.