Hines v. Frink , 257 N.C. 723 ( 1962 )

127 S.E.2d 509 (1962) 257 N.C. 723

Robert J. HINES
v.
Malcolm S. FRINK, Administrator of the Estate of Thomas Ray Gore, Deceased.
Malcolm S. FRINK, Administrator of the Estate of Thomas Ray Gore, Deceased,
v.
Robert J. HINES and Donald Ray Eagle.

No. 177.

Supreme Court of North Carolina.

October 10, 1962.

S. Bunn Frink, Southport, and Isaac C. Wright, Wilmington, for appellant.

L. Gleason Allen, Napoleon B. Barefoot, Wilmington, and Dupree, Weaver, Horton & Cockman, Raleigh, for appellees.

SHARP, Justice.

Appellant's first assignment of error relates to the testimony of the investigating officer that the license plate on Gore's Dodge truck had been issued for an International truck which he found out later had been junked. This hearsay was, of course, incompetent and totally irrelevant. However, it is inconceivable that it could have affected the verdict. Jurors are presumed to be persons of "sufficient intelligence". Murphy v. Carolina Power & Light Company, 196 N.C. 484, 146 S.E. 204. Technical error will not authorize a new trial unless it appears that the objecting party was prejudiced thereby, and the burden is on him to show prejudice. Ray v. French Board Elec. Membership Corp., 252 N.C. 380, 113 S.E.2d 806. The first assignment of error is overruled.

Appellant's second assignment of error embraces his exceptions to the overruling of his motion to nonsuit the actions of Hines and Eagle against him, and to the order of the court nonsuiting his action for the wrongful death of Gore. Each of these rulings was correct.

No discussion of negligence or proximate cause is necessary to sustain the motions of Hines and Eagle to nonsuit the action of Frink, administrator, for the wrongful death of his intestate. He offered no evidence and the record is devoid of any evidence as to the age, health, habits, or earning capacity of Gore. This Court, speaking through Rodman, J., has expressly said that G.S. §§ 28-173, 28-174, which creates the right of action for wrongful death, "does not provide for the assessment of punitive damages, nor the allowance of nominal damages in the absence of pecuniary loss." Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R. 2d 620. Even had Frink, administrator, been entitled to have the jury consider whether the negligence of Hines and Eagle proximately caused the death of his intestate, the Judge would have been required to instruct the jury that Frink, administrator, had offered no evidence tending to show any pecuniary loss resulting to the estate of Gore from his death, and that it should answer the issue of damages, on which he had the burden of proof, NOTHING. Hence, the judgment of nonsuit was proper. Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234.

The motions to nonsuit the actions of Hines and Eagle were made on the theory that the evidence established their contributory negligence as a matter of law. Conceding, for the purpose of these motions only, that Frink has properly pleaded contributory negligence in both actions, contributory negligence does not appear as a matter of law. The evidence of Hines and Eagle permits the legitimate inference that the Buick being driven by Eagle and the truck operated by Gore approached the intersection at approximately the same time; that the headlights of the Buick were burning and visible for three-fourths of a mile before it reached the intersection; that Eagle was driving within the maximum speed permitted by law; that as he passed the intersection warning sign he slowed down; that everything was clear as far as he could see when he proceeded into the intersection; that all of a sudden Gore drove his unlighted truck from the servient road into the path of the Buick, and a collision occurred in its lane of travel. Eagle was not required to anticipate such conduct on the part of another motorist. Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276. It cannot be said that the sole inference to be drawn from this evidence is that either excessive speed, lack of control and a failure to apply brakes, or a failure on the part of Eagle to keep a proper lookout was a proximate cause of the collision. Indeed, the more logical inference is that the unexpected appearance of the unlighted truck from a servient road was the sole proximate cause of the collision. Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381.

In his second assignment of error appellant not only included his exceptions to the rulings on the motions for nonsuit but also exception No. 7 taken to that portion of the charge in which the Judge told the jury that it would be necessary to answer the first and second issues alike. Within this exception to the charge, appellant attempted to include for the first time an objection and exception both to the issues submitted and to the failure of the court to submit an issue of contributory negligence as to Hines and Eagle—which issue he had not tendered.

Assignment of error No. 2 does not comply with the rules of this Court. "An assignment of error must present a single question of law for consideration by the court." An assignment which attempts to raise several different questions is broadside. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Weavil v. C. W. Myers Trading Post, 245 N.C. 106, 95 S.E.2d 533. However, it is noted that the defendant's pleadings in the case of Hines v. Frink, Administrator, do not raise the question of contributory negligence of Hines. Defendant could not, as he attempted to do, plead contributory negligence by reference to his counterclaim. G.S. § 1-138. In appellant's case against Eagle he did not plead contributory negligence eo nomine to Eagle's counterclaim; he did purport to plead the doctrine of last clear chance. However, a plaintiff who has alleged actionable negligence in his complaint is not required to repeat the same allegations in a reply to be entitled to an issue of contributory negligence after nonsuit of his cause of action upon the trial of defendant's counterclaim. Williamson v. Varner, 252 N.C. 446, 114 S.E.2d 92; Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200. To have submitted an issue of contributory negligence in the Eagle case and not in the Hines case would have created an anomalous situation because, as the Judge correctly charged the jury when he instructed it to answer the first and second issues alike, these two parties stood or fell together. If Frink, administrator, had desired to eliminate the inconsistencies of his position he should have tendered the issue of contributory negligence and moved to amend. He did neither. Furthermore, he made no objection to the issues tendered. On this record, he cannot raise the question of issues for the first time in this Court by an isolated assignment of error to one of those portions of the charge containing the issues. "An assignment of error alone will not suffice. Only an assignment of error bottomed on an exception duly entered in the record will serve to present a question of law for this court to decide." Worsley v. S. & W. Rendering Company, 239 N.C. 547, 80 S.E.2d 467.

Under his third assignment of error appellant groups exceptions 8 through 20 to thirteen portions of the charge. These have been set out and separately identified as Exhibits A through M. Under Exhibits B, C, G, J, and K, in addition to the portion of the charge to which appellant takes exception, he includes an exception to omissions of evidence and contentions which he now says should have been included. For instance, after that portion of the charge labeled Exhibit J in which the Judge charged on the duty of Gore to keep his truck under proper control, we find: "And further excepts for that his Honor omitted to charge that according to Hines' evidence Gore had stopped his truck and had it under control." This method of grouping exceptions does not comply with Rule 19(3). Nevertheless, we have considered each of the "Exhibits" and find each without merit. Exceptions 8 through 12 relate to portions of the charge in which the Judge reviewed the evidence; exceptions 13 and 15, to his statement of allegations in the pleadings. No misstatements appear and none were called to the attention of the Judge at the time. Appellant made no request for a fuller statement of the evidence or elaboration of contentions. The other "Exhibits" relate to portions of the charge in which the Judge applied the law to the evidence. In each instance he did it correctly or stated it favorably to the appellant.

We find no error in the trial below which requires a new trial.

No error.

PARKER, J., concurs in result.