Mickens v. Robinson , 103 N.C. App. 52 ( 1991 )

404 S.E.2d 359 (1991) 103 N.C. App. 52

Lenette D. MICKENS, Plaintiff,
v.
Sheila D. ROBINSON, Defendant.

No. 9021DC991.

Court of Appeals of North Carolina.

May 21, 1991.

F. Kevin Mauney, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Reid C. Adams and Ellis B. Drew, III, Winston-Salem, for defendant-appellee.

WELLS, Judge.

Plaintiff brings forward six assignments of error for our review. Assignments of error 2 and 6 are not argued in her brief and are therefore deemed abandoned. N.C.R.App.P. Rule 28. She contends that the trial court erred in admitting certain testimony from Officer John Turner, in awarding attorney's fees to defendant, and in failing to set aside the verdict as excessive in light of the evidence and order a new trial. We find no error.

Officer Turner was called as plaintiff's first witness. His testimony revealed that he investigated the accident, arriving on the scene within a few minutes of the collision. He testified in detail as to what he found at the scene, including testimony tending to show that defendant's vehicle ran into plaintiff's vehicle in the intersection, but he made no reference to the stop light other than that there was one in operation at the intersection. Questions and answers on direct show clearly that Officer Turner was either referring to or reading from his accident report prepared as a result of his investigation.

On cross-examination of Officer Turner, the following exchange took place:

Q. Officer Turner, in the course of your investigation, did you make a factual determination as to the cause of the accident?

MR. MOLITORIS: Objection.

COURT: Repeat the question, please, sir.

Q. All right. During and after your investigation, did you make a factual determination as to the cause of the accident?

MR. MOLITORIS: Objection.

COURT: Overruled.

A. Yes, sir.

Q. And what was the cause of the accident?

MR. MOLITORIS: Objection.

COURT: Overruled.

MR. MOLITORIS: May I be heard on that?

COURT: Approach the bench. (Counsel approach the bench.)

COURT: The objection is overruled.

MR. DREW: May I approach the witness, Your Honor?

COURT: Yes, sir.

Q. Officer Turner, do you have a copy of your accident report with you?

A. Yes, sir. I do.

Q. Did you make a notation as to the results of your investigation, your conclusions as to the cause of the accident on your accident report?

A. Yes, sir. I did.

Q. Would you please read that to the jury?

MR. MOLITORIS: Objection.

COURT: Overruled.

A. I'd like to clarify. Do you want me to read what I've got described as what happened?

Q. Please.

A. Okay. I said, "Vehicle # 1 traveling east on West Sixth Street failed to stop for a red light and was involved in an accident with Vehicle # 2 traveling north on Main Street. Account given....

MR. MOLITORIS: Objection.

COURT: Your objection is noted. It is overruled. I will give you a line objection as to anything pertaining to this information.

A. (continuing) "Account given by disinterested witness."

MR. MOLITORIS: Motion to strike.

COURT: Denied.

On redirect, the following took place:

Q. You, of course, personally did not observe this collision?

A. No, sir.

Q. And you don't know how or why it occurred?

MR. DREW: Objection, Your Honor. He's testified how and why it occurred.

COURT: Overruled.

Q. Officer, you don't know how or why this collision occurred, do you? Of your own knowledge.

A. Of my own knowledge? No. Not other than my investigation.

Q. And your investigation indicated that Vehicle # 2 drove into Vehicle #1?

A. Yes, sir.

On recross, the following took place:

Q. One last question, Officer Turner. When Vehicle # 2 proceeded into the intersection, did you conclude during any of your investigation that she drove into the intersection because she had a green light?

MR. MOLITORIS: Objection.

COURT: Sustained.

Q. Rephrase it. Vehicle #2 have the right of way when it drove into the intersection, Officer Turner?

MR. MOLITORIS: Objection.

COURT: Sustained.

Based on this record, we cannot agree with defendant's contention that Officer Turner was erroneously allowed to state his conclusion as to what caused the accident and was allowed to tell the jurors "what result to reach." Under this Court's ruling in Mobley v. Hill, 80 N.C.App. 79, 341 S.E.2d 46 (1986), the trial court obviously should have sustained plaintiff's objection to defendant's "conclusion as to the cause of the accident" question because the question invited Officer Turner to express an opinion as to fault clearly prohibited by Mobley. We perceive Officer Turner as having saved the situation, however, by limiting his response to repeating from his report what he had been told about what happened. The sum total of Officer Turner's testimony was to disavow any assessment or attribution of fault, and thus the error of the trial court in not sustaining plaintiff's original objection was rendered non-prejudicial.

While not dispositive in this case, we deem it helpful to note that the U.S. Supreme Court established a very broad rule for our federal courts in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988) which would appear to allow such opinion testimony from investigative reports under Rule 803(8)(C) of the Federal Rules of Evidence:

[P]ortions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report.

Thus it appears that in the federal courts hearsay may provide the basis for opinion testimony as to fault, in contrast to our holding in Mobley that an eyewitness may not express such an opinion.

Plaintiff next assigns error to the denial of her motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure on the grounds that the verdict was excessive and not supported by the evidence. Defendant testified that she suffered damages including lost wages of $225.00 and medical bills of $155.00. She also experienced soreness for seven to ten days after the accident and her leg was severely bruised. The jury returned a verdict of $6000.00 for personal injury damages. "It has been long settled in our jurisdiction that an appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge." Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). We perceive no such manifest abuse in this record. See Thompson v. Kyles, 48 N.C.App. 422, 269 S.E.2d 231, disc. review denied, 301 N.C. 239, 283 S.E.2d 135 (1980).

Finally, defendant assigns error to the trial court's award of attorney's fees to defendant. N.C.Gen.Stat. § 6-21.1 provides in pertinent part:

In any personal injury or property damage suit ... instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit....

The statute refers to "the litigant obtaining a judgment." We therefore reject plaintiff's contention that the legislature did not intend for defendants to be able to collect attorney's fees when they have prevailed on counterclaims for less than the stated amount. We also decline to adopt plaintiff's argument that the trial court was required to make findings of fact allocating the time spent on this case between work required to defend against plaintiff's claim and that required to forward her counterclaim. We see little way for the trial court to have made such a differentiation in this case. Much of the investigation and presentation of evidence necessarily overlapped. Defendant's attorneys presented evidence tending to show that they were entitled to a fee of $8000.00 for their work in this case. The trial court, after "having carefully reviewed the petitioner's hours," awarded $5000.00. There was no abuse of discretion in this award. The assignments of error relating to the award of attorney's fees are therefore overruled.

No error.

HEDRICK, C.J., and EAGLES, J., concur.