Dickens v. Everhart

BRITT, Judge. By the first assignment of error argued in his brief, plaintiff contends that'the trial court erred in failing to find that plaintiff’s witness, Dr. Toyama, was an expert witness familiar with accepted medical procedures and failing to. allow this witness to express his opinion “as to accepted medical practice in this case.” The alleged malpractice of defendant occurred in October 1964. Dr. Toyama testified: He completed medical school at Howard University, Washington, D. C., in 1963. He interned in Youngstown, Ohio, from 1963 to 1964 after which he moved to California where he received training in pathology from 1964 to 1968. He practiced pathology in California for one year then moved to Winston-Salem where he practiced that specialty from 1969 to April of 1972. At the time of trial he was practicing pathology in Galax, Virginia. He is licensed to practice medicine in North Carolina, California and Virginia. In an. attempt to show what was accepted medical practice in many communities “including the community of Mt. Airy” on 3 October 1964, plaintiff posed a hypothetical question to Dr. Toyama. The trial court sustained defendant’s objection to the question, stating (for the record) : “My chief reason for sustaining the objection is that this man was either a medical student or an intern in Ohio or somewhere else in 1964. In my view it is impossible for him to know what is the customary practice in this case at that time.” We find it unnecessary to pass upon the reasons given by the trial court in sustaining the objection as we think the court’s action should be upheld on at least one other well established ground. The record discloses that while plaintiff questioned Dr. Toyama at length about his medical training and experience, there was no admission by defendant that Dr. Toyama was a medical expert and plaintiff at no time asked the court to find that he was a medical expert. In Stansbury N. C. Evidence, 2d ed., § 133, p. 318, we find: “ * * * On objection being made, the party offering a witness as an expert should request a finding of his qualification; if there is no such [364] request, and no finding or admission that the witness is qualified, the exclusion of his testimony will not be reviewed on appeal.” The quoted statement is amply supported by authorities from this jurisdiction. We hold that in the absence of a request to do so, the court did not err in failing to declare Dr. Toyama an expert witness and the exclusion of his testimony as an expert is not presented for review. Plaintiff contends next that the trial court erred in its jury instructions in that it overemphasized the contentions of defendant, plaintiff arguing that the court “devoted more than twice as many lines” to its statement of defendant’s contentions as it did in stating plaintiff’s contentions. It is not required that the statement of contentions be of equal length. Durham v. Realty Company, 270 N.C. 631, 155 S.E. 2d 231 (1967); Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970). After a careful review of the challenged instructions, we conclude that the court did not give unequal stress to the contentions of either party in violation of G.S. 1A-1, Rule 51 (a). We further note that near the end of the charge, the court inquired if there is “anything else” and counsel for both parties answered in the negative. Plaintiff assigns as error other portions of, and alleged deficiencies in, the jury charge. Suffice to say, a careful review of the charge, with particular reference to the questions raised by plaintiff, impels us to conclude that the charge is free from prejudicial error. We have considered the other assignments of error argued in plaintiff’s brief but finding them without merit, they too are overruled. No error. Judges Parker and Vaughn concur.