Currence v. Hardin , 36 N.C. App. 130 ( 1978 )

243 S.E.2d 172 (1978)

Samuel Q. CURRENCE
v.
Faye Alice HARDIN.

No. 7726DC477.

Court of Appeals of North Carolina.

April 18, 1978.

Paul J. Williams, Charlotte, for plaintiff-appellant.

Caudle, Underwood & Kinsey, by C. Ralph Kinsey, Jr., Charlotte, for defendant-appellee.

BRITT, Judge.

By his first assignment of error, plaintiff contends the trial court erred in not allowing Dr. Logan to testify with respect to his chiropractic diagnosis of plaintiff. We find no merit in this contention.

In North Carolina chiropractors are allowed to testify as experts in their special field as defined and limited by statute. Allen v. Hinson, 12 N.C.App. 515, 183 S.E.2d 852, cert. denied 279 N.C. 726, 184 S.E.2d 883 (1971). The scope of testimony limited by the Allen case was recently expanded by G.S. 90-157.2. However, this statute is not applicable to the present case since it was not ratified until 1 July 1977. 1977 Sessions Laws C. 1109. (This case was tried in March 1977.) Nevertheless, we are unable to determine whether the proposed testimony of Dr. Logan comes within the case law standard in effect at the time of trial because plaintiff failed to include in the record what Dr. Logan's testimony would have been if he had been allowed to testify. "An exception to the exclusion of evidence will not be sustained when it is not made to appear what the excluded evidence would have been. Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966)." State v. Hedrick, 289 N.C. 232, 237, 221 S.E.2d 350, 354 (1975). See Clark v. Clark, 23 N.C.App. 589, 209 S.E.2d 545 (1974), Barringer v. Weathington, 11 N.C.App. 618, 182 S.E.2d 239 (1971).

By his second assignment of error, plaintiff contends the trial court erred in failing to grant his Rule 59 motion to set aside the verdict and grant a new trial. We find no merit in this assignment.

We note that at trial plaintiff moved that the verdict be set aside and a new trial be granted on the ground that errors were committed in the trial. On appeal plaintiff does not argue this ground but argues that the court should have granted his motion on the grounds that the verdict was inadequate and against the greater weight of the evidence.

Assuming, arguendo, that plaintiff has properly presented the question he argues in his brief we conclude that it has no merit. A motion for a new trial under Rule 59(a)(6), (7) is addressed to the sound judicial discretion of the trial judge, whose ruling in the absence of an abuse of discretion is not reviewable on appeal. Goldston v. Chambers, 272 N.C. 53, 157 S.E.2d 676 (1967); Redevelopment Commission v. Holman, 30 N.C.App. 395, 226 S.E.2d 848, cert. denied 290 N.C. 778, 229 S.E.2d 33 (1976); In re Brown, 23 N.C.App. 109, 208 S.E.2d 282 (1974). We perceive no abuse of discretion in this case.

No error.

ERWIN, J., concurs.

CLARK, J., dissents.

CLARK, Judge, dissenting:

The trial court sustained defendant's objection to the following question: Would you state what your chiropractic diagnosis was after your initial examination of Mr. Currence on this occasion? In my opinion this was prejudicial error.

Dr. Logan examined plaintiff in his office on the same day of the collision in question and regularly thereafter. He previously testified that he had made an initial chiropractic diagnosis. After the ruling of the trial court, the jury was excused for the purpose of discussing the ruling; the trial judge referred to Allen v. Hinson, supra, and stated: "I don't think you can get the diagnosis in unless you have competent medical evidence.... I don't think you can go any further with this doctor."

I am aware of the basic rule that an exception to an exclusion of evidence will not be sustained when it is not made to appear what the excluded evidence would have been, but this basic rule does not apply when the exclusion is based on the competency of the witness to testify as distinguished from the admissibility of his testimony. Stansbury's N.C.Evidence (Brandis Ed.) § 26.

The question asked for his opinion as to plaintiff's injury or condition within the scope of the field of chiropractic, and not far beyond this field as in Allen v. Hinson, supra. Dr. Logan was qualified and competent to answer the question and should have been allowed to do so. I vote to reverse and remand for a new trial.