Jernigan v. ATLANTIC COAST LINE RAILROAD COMPANY , 12 N.C. App. 241 ( 1971 )

182 S.E.2d 847 (1971) 12 N.C. App. 241

Cecil D. JERNIGAN, Jr.
v.
ATLANTIC COAST LINE RAILROAD COMPANY.

No. 716SC474.

Court of Appeals of North Carolina.

August 18, 1971.

Allsbrook, Benton, Knott, Allsbrook & Cranford by Richard B. Allsbrook, Roanoke Rapids, for plaintiff appellee.

Spruill, Trotter & Lane, by John R. Jolly, Jr., Rocky Mount, for defendant appellant.

MALLARD, Chief Judge.

Defendant's first contention is that the trial court erred in denying its motion to set the verdict aside as contrary to the greater weight of the evidence. It is elementary in this State that a motion on this ground is addressed to the sound discretion of the trial judge, and his decision is not reviewable in the absence of a manifest abuse of discretion. Goldston v. Chambers, 272 N.C. 53, 157 S.E.2d 676; Williams v. Boulerice, 269 N.C. 499, 153 S.E.2d 95; Hoffman v. Brown, 9 N.C.App. 36, 175 S.E.2d 388.

Plaintiff presented evidence that he suffered a forty percent permanent partial disability to his lower left extremity as a result of injuries sustained. Arthritis resulted, and plaintiff's physician expected the arthritis to increase with the passage of time and to further limit movement in plaintiff's hips. Atrophy caused a shortening of the left leg and also a lessening of the circumference of the left thigh by three-fourths of an inch. Less serious injuries about the chest and body were also sustained. There was considerable evidence to show continued pain, a curtailment of activities, and a loss of earning capacity.

The question is not whether we are of the opinion the jury's award more than adequately compensated plaintiff for his injuries, but whether we find a manifest abuse of discretion on the part of the trial judge in failing to set the verdict aside. In the light of the evidence of substantial and permanent injuries, a portion of which has been set forth, we do not so find. The reduction in the verdict of the jury by $25,000 gives defendant even less cause to complain.

Secondly, defendant contends that the court erred in permitting plaintiff to testify as to his average monthly net income during the months preceding his injury in 1961. In determining future earning capacity, prior earnings are admissible in evidence if there is a reasonable relation between past and probable future earnings. Fox v. Asheville Army Store, 216 N.C. 468, 5 S.E.2d 436.

Plaintiff testified that at the time of the accident he operated his own trucking business. He described in detail the extensive duties he performed in connection with this business. Many of the duties required a type of physical activity which was substantially curtailed by his injuries. As a result, plaintiff's business suffered in details described in his testimony.

In a tort action evidence of a loss of business will not ordinarily support a claim for special damages for lost profits. Nevertheless, such evidence is competent and admissible as an aid in determining damages for loss of time or impairment of earning capacity. Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894. No issue of special damage was submitted to the jury and defendant made no request that this evidence be restricted to the issue of loss of time or impairment of earning capacity. "The general admission of evidence competent for a restricted purpose will not be held reversible error in the absence of a request at the time that its admission be restricted." 7 Strong, N.C. Index 2d, Trial, § 17, p. 283.

Defendant particularly complains that plaintiff used no tax returns or other documentary evidence to show his actual income during 1961. In answering a similar contention made by the plaintiff in Smith v. Corsat, supra, Justice Moore stated for the court: "The fact that defendant did not testify from business records and accounts does not render his testimony too speculative. Plaintiff had full and ample opportunity to cross-examine him with respect to all phases of the business." 260 N.C. at 99, 131 S.E.2d at 899. This assignment of error is overruled.

Defendant's third assignment of error challenges the exclusion of a letter contained in plaintiff's Veterans Administration file. Defendant subpoenaed the file and offered evidence contained therein which tended to show that plaintiff had made a disability claim in 1952 for a service connected injury. This information included a medical report from the Veterans Administration physician who examined plaintiff. All the evidence tendered from the file was admitted except for a letter from an employee of the State Highway and Public Works Commission. The date of the letter is not shown; however, it purports to be from a fellow employee of plaintiff who describes certain observations which he made with respect to plaintiff's physical condition at the time plaintiff started work for the Commission in 1952 and subsequently.

We hold that the letter was properly excluded. The letter unquestionably constitutes hearsay evidence. The fact it was found among other papers in plaintiff's Veteran Administration file does not make it admissible as an entry in the regular course of business. To be admissible under this theory it must be shown that the entries were made in the regular course of business at or near the time of the transaction involved. Furthermore, the entries must be authenticated by a witness who is familiar with them and the system under which they were made. Stansbury, N.C. Evidence 2d, § 155. The letter fails to qualify in both of these essentials and amounts to nothing more than "hearsay on hearsay." See Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 125 S.E.2d 326, and Dairy & Ice Cream Supply Co. v. Gastonia Ice Cream Co., 232 N.C. 684, 61 S.E.2d 895.

Defendant's final two assignments of error relate to the charge. The charge contains the statement of the rule of damages set forth in Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421. This rule has been approved by our Supreme Court in cases too numerous to mention. A review of the complete charge shows that the trial judge fairly declared and explained the law arising on the evidence given in the case and gave equal stress to the contentions of each party. This was all he was required to do. G.S. § 1A-1, Rule 51(a).

No error.

BROCK and VAUGHN, JJ., concur.