Wachovia Bank & Trust Co., NA v. Guthrie , 67 N.C. App. 622 ( 1984 )

313 S.E.2d 603 (1984)

WACHOVIA BANK & TRUST COMPANY, N.A.
v.
Vernon L. GUTHRIE and Joyce Guthrie.

No. 833DC162.

Court of Appeals of North Carolina.

April 3, 1984.

Mason & Phillips, P.A. by L. Patten Mason, Morehead City, for plaintiff-appellant.

H. Buckmaster Coyne, Morehead City, for defendant-appellee.

EAGLES, Judge.

I

In its argument, plaintiff purports to bring forward several exceptions and assignments of error relating to the trial court's instructions to the jury. Briefly summarized, plaintiff's arguments are: (1) that the court failed to instruct the jury properly on the law arising from the facts of the case, (2) that the court failed to instruct the jury properly on the substance and effect of the parties' stipulations, (3) that the court made several erroneous statements in its summary of the evidence that were not corrected, and (4) that the court did not correctly answer a question raised by the jury after deliberations had begun.

Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides in part as follows:

No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

Applying the rule here, it does not appear that any of plaintiff's exceptions relating to the jury instructions are properly before this Court. The record affirmatively discloses that plaintiff was afforded an opportunity, as required by the rule, to note its objection to the jury charge prior to the retirement of the jury. Neither the record nor the transcript, however, indicate that the required objection was made.

In its Memorandum of Additional Authority, plaintiff cites us to the recent case of State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), for the proposition that, where an appellant fails to object to the jury charge as required by Rule 10(b)(2), the court may nevertheless review the charge for "``[p]lain errors or defects affecting substantial rights.'" Id. at 660, 300 S.E.2d at 378, quoting Rule 52(b), Fed. R.Crim.P. See U.S. v. McCaskill, 676 F.2d 995 (4th Cir.1982), cert. denied, 459 U.S. ___, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982) (stating "plain error" rule). Plaintiff notes that State v. Odom appears to limit the application of the "plain error" rule to criminal cases but contends that the instant case presents appropriate circumstances for extending the rule to civil actions. We disagree. Our reading of State v. Odom convinces us that our Supreme Court intended the "plain error" rule to apply only in criminal cases. We are aided to this interpretation by our awareness that Appellate Rule 2 allows us to suspend the operation of the Rules of Appellate Procedure in appropriate cases to, among other things, "prevent manifest injustice to a party." N.C.R.App. P. 2. Therefore, we decline to enlarge the "plain error" rule adopted in State v. Odom to encompass civil cases. But cf. In re Will of Maynard, 64 N.C.App. 211, 307 S.E.2d 416 (1983) ("plain error" extended in dicta to civil cases). Assuming arguendo that the "plain error" exception to the operation of Rule 10(b)(2) should extend to civil cases, we perceive no plain error sufficient to warrant a waiver of the operation of Rule 10(b)(2) in this case.

"Rule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory." State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982). Our review of the record in this case does not reveal any error in the court's charge to the jury that is so fundamental that we would invoke our powers under Appellate Rule 2 to suspend Rule 10(b)(2) and consider plaintiff's relevant exceptions and assignments of error and the arguments advanced in support of them.

II

Plaintiff next contends that it was error for the trial court to refuse to allow into evidence the internal memorandum written by Mr. Bennett, an employee witness for plaintiff, concerning the transfer of the "Carmen Louise." Plaintiff contends that this memorandum corroborates Mr. Bennett's testimony regarding the release of the boat as security for the note.

In North Carolina, corroborative evidence in the form of a prior consistent statement, written or verbal, is admissible evidence provided that it is substantially consistent with the witness's testimony at trial. See Brandis, N.C. Evidence §§ 51-52 (1982). Where the statement goes beyond corroboration and touches upon matters not in evidence, it is not admissible. Id.; e.g., State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976). With regard to the admissibility of corroborative evidence in civil cases, trial judges in North Carolina are allowed considerable discretion. Miller v. Kennedy, 22 N.C.App. 163, 205 S.E.2d 741, cert. denied, 285 N.C. 661, 207 S.E.2d 755 (1974); Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968). See generally, Brandis, supra, § 51.

Here, the memorandum that plaintiff offered into evidence, while corroborating Bennett's testimony, contained extraneous matters not in evidence. Its admission could have unfairly prejudiced defendants; its exclusion worked no prejudice to plaintiff. The trial court did not abuse its discretion in refusing to allow the memorandum into evidence.

III

Finally, plaintiff excepts to and assigns as error the trial court's entry of judgment and the denial of its motion under G.S. 1A-1, Rule 59(a), for a new trial. The arguments advanced in support of these assignments of error depend on our finding merit in plaintiff's previous arguments, considered and rejected above. Accordingly, we find that the evidence does support the verdict and that judgment was properly entered thereon. It was not error for the court to deny plaintiff's motion for a new trial. The judgment appealed from is affirmed.

No error.

HEDRICK and HILL, JJ., concur.