Johnson v. Massengill

HEDRICK, Judge. The defendant, by his first assignment of error, contends that the court committed prejudicial error in admitting evidence of the defendant’s general character and reputation which was based on specific acts of conduct. As a general rule, character and reputation cannot be proved by specific acts of conduct. Stansbury, N. C. Evidence, § 111 (2nd ed. 1963). However, all erroneous rulings of the trial court with respect to the admissibility of evidence will not result in a new trial. The burden is upon the appellant to show not only error but that such error was prejudicial to him, or that such error probably influenced the jury. Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970). This assignment of error relates to two witnesses, husband and wife, being permitted to testify for the plaintiff that the defendant’s reputation was “bad with us.” The husband was also permitted, over objection of the defendant, to describe a specific business transaction he had with the defendant. There was considerable evidence upon the part of the defendant as to his good character. Although it may have been technical error for the court to allow the witness to describe a personal business transaction with the defendant, upon which the witness might have based his opinion that the defendant has a bad reputation, the defendant has failed to show that he was prejudiced by such testimony in the eyes of the jury. Next, the defendant contends that the court committed prejudicial error by not submitting an issue to the jury as to whether the plaintiff and defendant entered into a contract as alleged in the complaint. Paragraph 2 of the complaint is as follows: “2. That on or about the 9th day of January 1969, the plaintiff entered into a contract with the defendant wherein [8] and whereby the plaintiff agreed to purchase 15,000 bushels of potatoes at $4.00 a bushel or a total of $60,000.00; and the defendant agreed to sell to the plaintiff 15,000 bushels of potatoes at $4.00 a bushel.” Defendant’s answer states: “Paragraph Two is not denied.” “Averments in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading.” G.S. 1A-1, Rule 8(d). All of the evidence offered at the trial tended to show that the plaintiff and the defendant entered into the contract described in Paragraph 2 of the complaint. In Fairmont School v. Bevis, 210 N.C. 50, 185 S.E. 463 (1936), Connor, J., quoting with approval from Dickens v. Perkins, 134 N.C. 220, 46 S.E. 490 (1904), stated: “An issue of fact . . . arises upon the pleadings when a material fact is alleged or maintained by one party and controverted by the other.” Except for the amount of damages, the only issue raised by the pleadings was whether the defendant breached the contract. This assignment of error is overruled. We have considered all of defendant’s assignments of error and find and hold that he had a fair trial in the superior court free from prejudicial error. No error. Chief Judge Mallard and Judge Campbell concur in the result.