Barbour v. Lewpage Corp. , 20 N.C. App. 271 ( 1973 )

PARKER, Judge.

The evidence was such as to require a jury determination as to whether there was want of probable cause, and defendants’ motions for directed verdict were properly denied. However, for errors in admissions of certain evidence there must be a new trial. We need refer only to one. At the close of defendants’ evidence plaintiff recalled one of his witnesses, Mrs. Ruth Dixon. Mrs. Dixon had previously testified that she had been employed at the Page House Restaurant as hostess and cashier during the time plaintiff was manager. On redirect examination plaintiff’s counsel asked her:

Question: “Mrs. Dixon, has Bill Page [referring to the individual defendant] ever in any manner asked you for yourself or anybody else to visit motels and meet men ?”

The court overruled defendants’ timely objection, and the witness answered, “Yes, sir.”

Appellants’ contention that in admission of this testimony they suffered prejudicial error must be sustained. There was simply no excuse for such a question. The answer elicited was totally irrelevant to any issue properly raised at the trial. Defendant Page’s character was not directly at issue, and “[w]here a person’s character is only collaterally in issue, to allow it to be proved by specific acts of good or bad conduct would consume an unreasonable amount of time, distract the jury’s attention from the real issues in the case, lead to acrimonious disputes, and unfairly surprise the opponent, who may be presumed to be ready to defend his own general reputation or that of his witnesses, but not to meet specific charges against either without notice.” 1 Stansbury, N. C. Evidence, Brandis Revision, § 111. Nor can there be much question as to the prejudicial impact of the testimony in this case; the witness’s unequivocally affirmative response came at the close of plaintiff’s rebuttal evidence and was immediately underlined when defendants’ counsel was forced to recall defendant Page to the stand to deny the accusation. No portion of the upcoming jury charge served to nullify this testimony, which remained fresh in the jurors’ minds as they retired for deliberation.

While we hold that the admission of this evidence was error prejudicial to the defendants, had this been the only error at the trial it might not be considered sufficiently prejudicial to warrant requiring a new trial. There were, however, other errors in the admission of evidence such that the cumulative effect, in our opinion, resulted in denying defendants a fair trial before the jury. However, we do not discuss appellants’ other assignments of error, as the questions presented may not arise upon retrial.

New trial.

Judges Campbell and Vaughn concur.