Branch v. Seitz , 262 N.C. 727 ( 1964 )

138 S.E.2d 493 (1964) 262 N.C. 727

Mrs. Bertie BRANCH
v.
Margaret Griffin SEITZ.

No. 310.

Supreme Court of North Carolina.

November 4, 1964.

Russell Berry and Simpson & Simpson, Morganton, for appellant.

Patton, Ervin & Starnes, Morganton, for defendant appellee.

PER CURIAM.

Plaintiff, when asked how defendant drove, replied: "She started off at a high rate of speed." This answer was, on defendant's motion stricken. Immediately thereafter, plaintiff testified, without objection, that defendant, when she crossed Meeting House Street, was driving between 50 and 55 miles per hour. Conceding, without deciding, the court erred, the error was harmless.

Plaintiff testified defendant was not confronted by an approaching car. On cross examination of plaintiff, she was asked about a written statement purportedly made by her on August 30, 1961. This statement detailed events leading to the collision. It negatives plaintiff's charge of excessive speed. It affirms defendant's assertion that she left the roadway to avoid a collision with an approaching car. The statement concludes: "I have read the above two page statement which is true and correct and I adopt said statement as my own." Then followed what purported to be plaintiff's signature. Plaintiff refused to admit or to deny the genuineness of the signature.

Defendant offered testimony from other witnesses that plaintiff, while a patient in the hospital for treatment the first time, stated that the collision was caused in the manner claimed by defendant.

Plaintiff attempted to explain her refusal to admit she signed the statement, and made the oral statement attributed to her by patients in the hospital, by asserting she was in such pain from the injuries and was so affected by drugs administered that she had no recollection of anything she said or did.

Plaintiff was hospitalized from August 23, 1961 to September 3, 1961 for treatment of the injuries caused by the collision. She was again admitted for skin grafting on September 18, 1961. She remained until October 18, 1961. Dr. Hairfield was the attending physician during the second admission.

The hospital records, showing the treatment given and drugs administered, were offered in evidence. Defendant then inquired of Dr. Hairfield, if the jury should find plaintiff was injured and treated as shown by the records, would such treatment, in his opinion, produce unconsciousness or lack of memory by plaintiff. The witness said: "It is sort of hard to answer that yes or no." The court then said: "You can answer it ``yes', and then qualify it." Plaintiff objected. The objection was overruled. The witness answered: "I would have to qualify from the standpoint that I didn't actually see this particular patient; and from the standpoint that one patient may have a different reaction from medication from another; and that I would have to say that it is not to a particular patient, but in the average case or ordinary case similar to it that I could give you an opinion on it. My opinion on that would be that it would not be sufficient to be unconscious from it."

Plaintiff's argument that the court should not have permitted the witness to express a qualified opinion is without merit. Even if error be assumed, we cannot see how plaintiff was prejudiced by the answer.

At the March Session, plaintiff moved for a new trial for newly discovered evidence. The motion was supported by two affidavits tending to contradict defendant's testimony that she was confronted by an oncoming car. The motion was denied.

When plaintiff appealed to this Court, the Superior Court's jurisdiction terminated. Judge Riddle correctly refused to allow the motion for a new trial. Clark v. Cagle, 226 N.C. 230, 37 S.E.2d 672; Green v. Fidelity-Phenix Fire Insurance Co., 233 N.C. 321, 64 S.E.2d 162.

Plaintiff moves in this Court for a new trial for newly discovered evidence. The evidence on which she relies is the same relied on in the motion made in the Superior Court. What must be shown to justify this Court in awarding a new trial is stated in Alexander v. Richmond Cedar Works, 177 N.C. 536, 98 S.E. 780, cited by movant. We have examined the affidavits on which movant relies. They tend to corroborate plaintiff's testimony at the trial, and to that extent contradict defendant. A careful examination of the affidavits fails to convince us that the jury would probably have reached a different conclusion if the evidence had been available at the trial. Movant has failed to carry the burden. Moore v. Superior Stone Co., 251 N.C. 69, 110 S.E.2d 459. The motion is denied.

No error.