Steele v. . Coxe

Schenck, J. The first assignment of error set out in appellant’s brief is exception No. 1, to the court’s allowing the plaintiff, over objection by defendant, • to introduce in evidence two paragraphs of a letter from J. M. Ledbetter (agent of plaintiff) to T. C. Ooxe (defendant), dated 30 June, 1943. The matter objected to in the letter is the statement that Mr. Hildreath, agent of defendant, made to J. M. Ledbetter that they would have to count the stumps to tell how much timber had been cut from the Lovin Tract and sawed along with timber cut from the Morman Place. Aside from the fact that this tends to corroborate Ledbetter, then a witness on the stand, it is admissible, inter alia, for the reason that the statement attributed to Mr. Hildreath in the letter was made in the capacity of agent of Mr. Ooxe, the defendant, in the settlement of the timber dispute. It is well settled that admissions of an agent, when made in the course of his employment, are admissible in evidence. Calvert v. Alvey, 152 N. C., 610, 68 S. E., 153; Salmon v. Pearce, 223 N. C., 587, 27 S. E. (2d), 647. Mr. Ledbetter testified substantially to the same effect without objection. The admission of similar evidence without objection waives the first objection. Owens v. Lumber Co., 212 N. C., 133, 193 S. E., 219, and eases there cited. This assignment of error cannot be sustained. The next assignments of error set out and discussed in appellant’s brief are Nos. 2, 3, 4 and 5 which are considered together, since they relate to having witness Irby testify to his opinion, and also to having him refresh his recollection from letters handed him when he as a witness had not indicated a desire to see such letters. These exceptions seem to be based upon two reasons, first, the lack of qualification of the witness *730 to express an opinion, and second, upon allowing witness to refresh, bis recollection from the letters shown him, when there was no request made by witness to see such paper writings for the purpose of refreshing his recollection. On the first contention; that is, that the witness was not qualified to express an opinion, the witness testified that “he had been in timber” all his life and had been a timber cruiser for 20 or 30 years, and that he had cruised timber for a number of people in a number of localities. "While the witness Irby was never found by the court to be an expert, “it has also been found necessary to admit a class of evidence from non-expert witnesses, which is usually spoken of as ‘opinion evidence,’ where the facts as they appeared to the witness cannot clearly and adequately be reproduced, described and detailed to the jury.” 20 Am. Jur., 640, Evidence, sec. 769. “The practical test for receiving or rejecting opinions of lay witnesses is that where the jury can be put into a position of equal vantage with the witness for drawing them, the witness may not as a rule give an opinion or estimate.” 20 Am. Jur., 642, Evidence, sec. 769. Applying the tests indicated to the witness Irby’s testimony, the distances from stumps to laps, the diameter of stumps and laps, and the number of stumps could not have been given in evidence, and, therefore, of necessity the opinion of the witness was properly received. The second reason urged as to why the witness Irby’s opinions and estimates should have been excluded was that the witness was handed a letter to refresh his recollection. It is well settled that it is proper for a witness to refresh his memory by the use of a proper writing. 20 Am. Jur., 798, Evidence, sec. 946. Not only may a witness be allowed to refresh his memory, but he may be compelled to do so. State ex rel. Davenport v. McKee, 94 N. C., 325; N. C. Handbook of Evidence, Lockhart, sec. 43. These assignments of error cannot be sustained. The next assignments of error set out in appellant’s brief relate to exceptions 8 and 17, which are to the refusal of the court to submit issues tendered by the defendant and to the submission of the issues which were submitted to and answered by the jury. The issues tendered by the defendant were: “1. "Was it the intention of the parties that the timber on both the Monnan and the Lovin or O’Brien tracts was to be included in the timber deed of April 9, 1940 ? Answer :. 2. If not, what was the value of the standing timber cut from the Lovin or O’Brien tract? Answer: .” The issues submitted to and answered by the jury were: “1. Was the Lovin tract of land omitted from the timber deed, from the plaintiff to the defendant, executed on April 9, 1940, by mutual mistake of the parties and their agents, as alleged in the answer ? Answer:. 2. Did the defendant agree with Mr. J. M. Ledbetter, as agent of the plaintiff, to pay for the timber cut from the Lovin tract *731 after a controversy bas arisen about it? Answer: . 3. In what amount, if any, is the plaintiff entitled to recover of the defendant for timber cut and removed from the Lovin tract ? Answer: .” These assignments of error pose two questions: First, did the issues submitted to and answered by the jury arise upon the pleadings and present to the jury all essential or determinative facts in controversy, and were not prejudicial and did not affect any substantial rights? We are of the opinion that the answer is in the affirmative. The determinative facts in controversy were, first, was the timber on the Lovin tract of land omitted by mistake from the timber deed from plaintiff to defendant dated April 9, 1940, and the case rested primarily upon the answer thereto, and an answer given in favor of the defendant would have been fatal to plaintiff’s case; and other determinative questions arising on the pleadings and presented to the jury were, did the defendant agree with plaintiff’s agent to pay for the timber cut from the Lovin tract, and what amount was plaintiff entitled to recover of defendant for timber cut and removed from Lovin tract? We think the issues as submitted arise on the pleadings and present to the jury inquiries as to all essential matters or determinative facts in dispute. “The test of the sufficiency of issues is, ‘did the issues afford the parties opportunity to introduce all pertinent evidence and apply it fairly?’ Tuttle v. Tuttle, 146 N. C., 484; DeLoache v. DeLoache, 189 N. C., 394, 400; Elliott v. Power Co., ante, (190 N. C.), 62. When issues meet the test they satisfy all the requirements of Rudasill v. Falls, 92 N. C., 222, and Gordon v. Collett, 104 N. C., 381. Erskine v. Motor Co., 187 N. C., 826 (831-2).” Grier v. Weldon, 205 N. C., 575, 172 S. E., 200. In this case the issues seem to meet the test indicated. Another question left for answer, since the issues submitted are deemed sufficient: Was there any requirement for the submission of the issues tendered? We think not. “The issues submitted were sufficient to embrace every question in dispute between the parties, and for the parties to present every material phase of the case, and this being the case, an objection to it is groundless. Patterson v. Mills, 121 N. C., 258; Warehouse Co. v. Ozment, 132 N. C., 848; Hatcher v. Dabbs, 133 N. C., 239; Pretzfelder v. Ins. Co., 123 N. C., 164.” Hall v. Giessell, 179 N. C., 657, 103 S. E., 392. Since the issues submitted were sufficient, the Court is not required to submit the tendered issues in the language of the party who tenders them. In truth, the form of the issues submitted are largely in the discretion of the court, and if not prejudicial or affecting substantial rights will not ordinarily be held for error. Gasque v. Asheville, 207 N. C., 821 (828), 178 S. E., 848; Grier v. Weldon, 205 N. C., 575 (578), 172 S. E., *732 200. The issues submitted were entirely sufficient to cover tbe whole controversy, and, therefore, the exceptions to them are untenable. The next assignment of error set out in the appellant’s brief was based upon exception No. II. This assignment cannot be sustained for the reason principally, that the portion of the charge assailed was given in a statement of the contention of the parties, to which no objection was made at the time given, in order to afford the court an opportunity to correct himself if the contention given was erroneous. The contention given related to what was said to plaintiff’s agent by the defendant’s agent in regard to paying for the timber on the Lovin tract provided defendant was permitted to cut it. There was a controversy as to what was said; the plaintiff contending the defendant said he would pay for the timber on the Lovin tract if he was permitted to cut it, and defendant contending he said he would pay for the timber cut on the Lovin tract if he was permitted to cut it, and the court found that he had contracted to pay for it. The portion of the charge assailed related to the court’s stating the contentions of the parties as to what was said by the defendant as to paying for the timber on the Lovin land if he was allowed to cut it. It has been repeatedly and universally held by this Court that the error assigned to statements in the charge upon the contentions of the parties and not at the time called to the court’s attention, are untenable. S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657; S. v. Holts, 216 N. C., 14, 3 S. E. (2d), 431. The next assignment of error set out in appellant’s brief relates to exception No. 12, in which the appellant contends that the portion of the charge assailed was error for that it relates to the second issue submitted, which should not have been submitted. The correctness of the second issue has already been discussed and held to be a valid one under the pleadings and evidence. Hence this exception is untenable. The next assignment of error set out in the appellant’s brief is that based on exception 12, which is to a portion of his Honor’s charge to the effect that the plaintiff contends that the third issue, provided the issue is reached, should be answered, in effect, that the plaintiff is entitled to recover “the sum of $1,295.00, or a substantial sum approaching that amount,” when the court did not instruct the jury that the defendant contended that the issue should be answered in a sum less than $1,925.00. If error was here committed it was in the statement of contentions, which was not called to the attention of the court at the time, and, therefore, was untenable. S. v. Wagstaff and S. v. Hobbs, supra. The next assignment of error set out in appellant’s brief is to the portion of the charge assailed by exception No. 14. This assignment is untenable for the same reasons as the preceding assignment mentioned, No. 13. *733 The next assignment of error set out in appellant’s brief relates to exception No. 15, which likewise assails the charge of the court in stating the contentions of the plaintiff, and which, for the reasons given in discussing exceptions Nos. 12, 13, and 14, are untenable. While the appellant’s brief in closing states that it appears from the record that the court did not instruct the jury in accord with G. S., 1-180, it nowhere states specifically how the charge failed to measure up to the requirements of the statute. This is requisite. After a careful scrutiny of the record, and due consideration of the rulings of the court, we have found no reason to disturb the verdict and judgment. Affirmed.