Thompson v. James

PHILLIPS, Judge. In appealing plaintiff contends that the court erred to his prejudice in permitting defendant to elicit irrelevant, inflam [536] matory information from him during cross-examination and in not instructing the jury as he requested. Neither contention has merit in our opinion and we overrule them. The testimony given over objections as to relevancy was that: (1) Following the parking lot accident plaintiff contacted his lawyer before he did his doctor; (2) between the time this accident occurred and the trial, five years later, he sued Scott Wilson and Randall Wilson, alleging that they ran their car over his foot and injured him, and he also sued the county sheriff, alleging that his deputy gave him a severe beating and seriously injured him. The testimony objected to was relevant to an issue being tried, in our opinion, and it was also admissible for the purpose of impeaching plaintiffs credibility and showing his bias as a witness. Furthermore, all his objections were lost because substantially the same testimony was given by others without objection. Shelton v. Southern Railway Co., 193 N.C. 670, 139 S.E. 232 (1927). An important issue in the case was the extent of plaintiff s injury and even if he had one, and contacting his lawyer before he did his doctor could indicate that his injury was not as severe as he claimed; it could also indicate, along with the other evidence discussed below, that he has an unduly litigious nature, a proper ground for impeachment, we believe, in a case based on circumstances that suggest exaggeration. 1 Brandis N.C. Evidence Sec. 43, p. 164 (2d rev. ed. 1982); G.S. 8C-1, Rule 608(b), N.C. Evidence Code. In all events the court’s ruling was harmless since plaintiffs wife testified without objection that “[h]e called his lawyer before his doctor because it’s customary for him to check with his attorney before he makes any move.” Plaintiffs claims against the Wilsons and the sheriff are also relevant to this claim because the injuries that they allegedly caused could be partially or entirely responsible for plaintiffs present condition. Dr. Berkey, one of plaintiffs doctors, testified that: Mr. Thompson did tell me about Mr. Wilson’s case and it is impossible for me to weed that case from this one and also the sheriffs case. He stated that Mr. Wilson ran over his foot. I have not seen the Complaint in that case. The other evidence that bore on plaintiffs credibility and the severity of his injuries and helped make the evidence complained of relevant was that (a) following the parking lot incident his doc [537] tor did not “find a single bruise, skin mark, cut or blotch”; (b) following his alleged beating by the sheriff plaintiffs emergency room record stated that there were no abrasions on his body; and (c) in both instances plaintiff sued claiming to be seriously injured. Plaintiffs requested jury instruction concerned the duty of a motorist in backing his vehicle. While the instruction could have been properly given the refusal to give it was not error because the instruction that the court gave on this issue was both adequate and correct. Anderson v. Smith, 29 N.C. App. 72, 223 S.E. 2d 402 (1976). No error. Judges Arnold and Eagles concur.