Strickland v. Jackson , 23 N.C. App. 603 ( 1974 )

209 S.E.2d 859 (1974) 23 N.C. App. 603

Raymond STRICKLAND
v.
Marlon JACKSON and Carlton Jackson.

No. 7411SC641.

Court of Appeals of North Carolina.

November 20, 1974.

Chambliss, Paderick, Warrick & Johnson, P. A. by Joseph B. Chambliss, Clinton, for defendants-appellants.

Bryan, Jones, Johnson, Hunter & Greene by C. M. Hunter, Dunn, for plaintiff-appellee.

BROCK, Chief Judge.

Defendants contend that the trial court committed error when it permitted testimony concerning the transfer of real property by the defendants subsequent to the assault. The plaintiff's counsel first inquired into defendants' ownership of land on cross-examination upon the question of the defendants' financial ability to respond in punitive damages. Testimony elicited by the plaintiff's counsel indicated that the defendants' property, consisting of approximately 100 acres, was transferred to defendant Carlton Jackson's wife in October, 1971, subsequent to the commencement of this action by the plaintiff. Defendants concede that evidence of the financial condition of a defendant is admissible in an action where punitive damages may be awarded, but argue that the evidence in this case went beyond that rule to the defendants' prejudice. We disagree.

It is well settled in North Carolina that "[o]rdinarily, a party's financial ability to respond in damages, or to pay an alleged debt, is totally irrelevant to the issue of liability; and the admission of evidence tending to establish such ability is held to be prejudicial, except in cases warranting an award of punitive damages." Harvel's, Inc. v. Eggleston, 268 N.C. 388, 392, 150 S.E.2d 786, 790. Such evidence is admissible "on the theory that the allowance of a given sum would be a greater punishment to a man of small means than to one possessing larger wealth." 22 Am.Jur.2d, Damages, § 322 (1965) (footnote omitted). The evidence elicited by the plaintiff's counsel was competent upon the question of ability to respond in punitive damages. This assignment of error is overruled.

Defendants contend that the trial court committed error when it failed to permit witnesses for the defense to testify as to the character and reputation of the defendants. It is well settled that "[e]vidence of the good or bad character of either party to a civil action is generally inadmissible. Such evidence is regarded as being too remote to be of substantial value, as tending to confuse the issues and unduly protract the trial, and (most important of all) as offering a temptation to the jury to reward a good life or punish a bad man instead of deciding the issues before them." 1 Stansbury, North Carolina Evidence, § 103 (Brandis Revision, 1973) (footnotes omitted). Defendants argue that exceptions to the general rule would permit the introduction of character evidence in this case. Although the exceptions do not include cases of civil assault and battery, the exceptions do "suggest a general practice of admitting character evidence in civil cases ``where a moral intent is marked and prominent in the nature of the issue,' . . ." 1 Stansbury, North Carolina Evidence, § 103 (Brandis Revision, 1973) (footnotes omitted).

The introduction of character evidence in criminal actions is an historical, special dispensation to criminal defendants whose life or liberty is at stake. A majority of courts have refused to allow character evidence in civil actions due to time consumption and detraction from the issues. But a growing minority of jurisdictions "has been impressed with the serious consequences to the party's standing, reputation, and relationships which such a charge, even in a civil action, may bring in its train, and has followed the criminal analogy, by permitting the party to introduce evidence of his good reputation for the trait involved in the charge." McCormick on Evidence, § 192 (1972) (footnotes omitted). We note, however, that civil actions for assault are treated differently. See 154 A.L.R. 121; 1 A.L. R.3d 571. A succinct discussion is found in McCormick on Evidence:

"When the issue is merely whether the defendant committed the act charged, then the courts would presumably admit or exclude defendant's evidence of good reputation according to their alignment with the majority or minority view on the general question, . . . But when the defendant pleads self-defence, he may show the plaintiff's reputation for turbulence if he proves it was known to him, on the issue of reasonable apprehension. Similarly, when on a plea of self-defence or otherwise there is an issue as to who committed the first act of aggression, most courts (regardless of their alignment on the general question) seem to admit evidence of the good or bad reputation of both plaintiff and defendant for peacefulness as shedding light on their probable acts. This cannot be justified, as is sometimes attempted, on the ground that character is here ``in issue'—the issue is clearly one of conduct—but probably there is in these cases a special need even beyond that in most cases of charges of crime in civil actions, for knowing the dispositions of the parties." McCormick on Evidence, § 192 (1972) (footnotes omitted).

Defendants rely on the case of Hess v. Marinari, 81 W.Va. 500, 94 S.E. 968 (1918), as supporting the proposition that character evidence is admissible in civil actions for assault. In Hess there was an assault and a claim for punitive damages. The court noted that such a claim requires a finding of criminal intent and ruled that the defendant was entitled, as in a criminal case, to show his good character. In Skidmore v. Star Ins. Co., 126 W.Va. 307, 27 S.E.2d 845 (1943), the court rejected the admission of evidence of character to show conduct in civil cases and distinguished Hess on the ground that criminal intent was there material. McCormick on Evidence, 460, n. 94 (1972). Nevertheless, we are persuaded that when there is a plea of self-defense, or an issue as to who committed the first act of aggression, it is competent to show, through evidence of reputation, the dispensations of the parties. The character witness for the defendants was allowed by the trial court to put his answer in the record. He testified, for the record, that defendants' general character and reputation were "good, excellent." Neither the question propunded nor the answer given was designed to show the dispensation of defendants towards peacefulness or violence. This assignment of error is overruled.

Defendants contend that the trial court committed error when it allowed the plaintiff's rebuttal witness, Ralph Barefoot, a police officer, to give his opinion concerning the distance at which a shotgun could inflict injuries of the type suffered by the plaintiff. We note that this question was important on the issue of self-defense pleaded by the defendants; however, the defendants objected generally to the question and failed to object specifically to the qualifications of the witness to so testify. Had the defendants objected specifically, the witness' qualifications could have been more fully developed. It is well settled that failure to lodge a specific objection that a witness is not qualified as an expert is waived if not made in apt time. 1 Stansbury, North Carolina Evidence, § 133 (Brandis Revision, 1973). This assignment of error is without merit.

Defendants contend that the trial judge erred in his charge to the jury on the issue of self-defense. We have reviewed the charge and find that it sufficiently stated and applied the law to the facts of the case.

In our opinion defendants had a fair trial free from prejudicial error.

No error.

MORRIS and MARTIN, JJ., concur.