Cogdill v. Scates

224 S.E.2d 604 (1976) 290 N.C. 31

Mona Robinson COGDILL
v.
Susan Weeks SCATES and George Thomas Cogdill.

No. 64.

Supreme Court of North Carolina.

May 14, 1976.

Bruce A. Elmore and John A. Powell, Asheville, for plaintiff appellant.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for George Thomas Cogdill, defendant appellee.

SHARP, Chief Justice:

This appeal involves the question to what extent and under what circumstances a party is bound by his own adverse testimony in the trial of his case. This "has been characterized as one of the most troublesome questions in the law of evidence and has been the subject of much diversity of judicial opinion." 32A C.J.S. Evidence § 1040(3) (1964). Specifically, the question here presented is: Upon the trial of an action, may a party under no disability who (1) deliberately and unequivocally repudiates the allegations in the pleadings upon which she has based her claim for relief, and (2) testifies to objective facts purportedly within her knowledge which utterly destroy her case and exonerate the adverse party of any liability to her, be allowed to recover damages upon the testimony contra of other witnesses?

Our research, and that of the parties, has not discovered any prior decision in which this Court has considered the effect of testimony by a party which, if true, would defeat his action when the testimony of other witnesses tends to establish his case.

Plaintiff argues that the case of Arthur v. Henry, 157 N.C. 393, 73 S.E. 206 (1911), stands for the proposition that a party's adverse admissions, given as testimony on the stand, are not to be accorded conclusive weight, for they are neither judicial admissions nor a retraxit. Arthur v. Henry was an action for damages to real property and injunctive relief. In that case the plaintiff and the defendant owned adjoining land. From June 1904 to October 1906 defendant operated a quarry on his land. Blasting in the quarry caused rocks and dust to be thrown upon the plaintiff's house and land. In February 1906 the defendant sought to negotiate a contract with the plaintiff whereby he could operate the quarry without liability. After "some bitter words between the parties" the defendant told the plaintiff he would "find a way to use that quarry without being liable." In July 1906 the defendant leased the quarry to a corporation which operated it from the fall of 1906 until April 1907. After operations in the quarry were resumed in 1909 the plaintiff instituted an action against the defendant on 4 August 1909, alleging that the quarry constituted a nuisance and that the defendant had been out of the state from May 1906 to October 1907.

At trial the plaintiff testified "that he did not claim damages prior to 4 August, 1906." The issue submitted was, "What amount of damages . . . for . . . acts committed after 4 March, 1905, if any, is the plaintiff entitled to recover?" This issue was framed so as to permit the plaintiff to recover any damages sustained during the three years prior to the institution of the action, plus the time the defendant was out of the state. The jury answered all issues in favor of the plaintiff and, upon the defendant's appeal, the Court stated one of the questions to be: "Does the evidence of the plaintiff that he claimed no damages prior to August, 1906, prevent a recovery of other damages, not barred by the statute of limitations?" Id. at 401, 73 S.E. at 209. Obviously, the answer to this question was NO. The Court, however, disposed of it in these words:

"Nor did the statement of the plaintiff on the witness stand, that he claimed no damages prior to 4 August 1906 prevent an inquiry as to all damages not barred by the statute of limitations.

"It is a statement which ought to have had weight with the jury; but it does not amount to a retraxit, and as a contract there is no mutuality and no consideration." Id. at 406, 73 S.E. at 211.

Defendant contends that the proper interpretation of the plaintiff's testimony in Arthur v. Henry is that the plaintiff had made no claim for damages prior to August 1906; that he did not say he had sustained no damages before then. We cannot tell from the statement of facts in the opinion what the plaintiff meant to say. However, even if his statement be construed as an intended waiver of damages occurring prior to 4 August 1906, it certainly was not a repudiation of his entire claim or a disavowal of the allegations of his complaint. The plaintiff's statement in Arthur is not comparable to the unequivocal testimony of plaintiff Cogdill by which she positively repudiated the complaint on which she based her action. Arthur v. Henry, therefore, is not dispositive of the question before us; nor does its terse and imprecise rationale aid decision here.

As heretofore noted, other courts and commentators have fully considered the effect of a party's own adverse testimony upon his right to recover. The cases are collected and analyzed in the following materials: Annot., Binding effect of party's own unfavorable testimony, 169 A.L.R. 798 (1947) and later case service volumes; 32A C.J.S. Evidence § 1040(3); McCormick, Handbook of the Law of Evidence § 266 (2d Ed. 1972); IX J. Wigmore, Evidence, § 2594 a (3d Ed. 1940).

The exposition of Professor McCormick is summarized, except when quoted, below:

If, while testifying, a party has made an admission which—if true—is fatal to his cause of action or defense, and it stands unimpeached and uncontradicted at the end of the trial, it is generally conclusive against him. "The controversial question is whether he is bound by his own testimony in the sense that he will not be allowed to contradict it by other testimony, or, if contradictory testimony has been received, the judge and jury are required to disregard it and to accept as true the party's self-disserving testimony, as a judicial admission." McCormick, supra, § 266.

The courts have taken three often overlapping approaches to the question. "First, the view that a party's testimony in this respect is like the testimony of any other witness called by the party, that is, the party is free (as far as any rule of law is concerned) to elicit contradictory testimony from the witness himself or to call other witnesses to contradict him. Obviously, however, the problem of persuasion may be a difficult one when the party seeks to explain or contradict his own words, and equally obviously the trial judge would often be justified in saying, on motion for directed verdict, that reasonable minds in the particular state of the proof could only believe that the party's testimony against his interest was true.

"Second, the view that the party's testimony is not conclusive against contradiction except when he testifies unequivocally to matters `in his peculiar knowledge.' These matters may consist of subjective facts, such as his own knowledge or motivation, or they may consist of objective facts observed by him.

"Third, the doctrine that a party's testimony adverse to himself is in general to be treated as a judicial admission, conclusive against him, so that he may not bring other witnesses to contradict it, and if he or his adversary does elicit such conflicting testimony it will be disregarded. Obviously, this general rule demands many qualifications and exceptions. Among these are the following: (1) The party is free to contradict, and thus correct, his own testimony; only when his own testimony taken as a whole unequivocally affirms the statement does the rule of conclusiveness apply. The rule is inapplicable, moreover, when the party's testimony (2) may be attributable to inadvertence or to a foreigner's mistake as to meaning, or (3) is merely negative in effect, or (4) is avowedly uncertain, or is an estimate or opinion rather than an assertion of concrete fact, or (5) relates to a matter as to which the party could easily have been mistaken, such as the swiftly moving events just preceding a collision in which the party was injured." Id.

Of these three approaches, it is McCormick's view that the first "seems preferable in policy and most in accord with the tradition of jury trials." The second, which binds the party only as to facts within his "peculiar knowledge," is based on the doubtful assumption that as to such facts the possibility that he may be mistaken is insubstantial. "There are few, if any subjects, on which plaintiffs [parties] are infallible." The third, which purports to apply the rule of conclusiveness, was probably the result of judicial outrage engendered by the "seeming attempts by parties to play fast and loose with the court." However, experience shows that it is not the unscrupulous party who is punished by it but "the one who can be pushed into an admission by the ingenuity or persistence of adverse counsel, or the unusually candid or conscientious party willing to speak the truth to his own hurt." A party's testimony, "uttered by a layman in the stress of examination, cannot with justice be given the conclusiveness of the traditional judicial admission in a pleading or stipulation, deliberately drafted by counsel for the express purpose of limiting and defining the facts in issue." Further, a general rule of conclusiveness, leads to mechanical solutions, unrelated to the needs of justice, and breed exceptions "calculated to proliferate appeals" in situations better left to the judgment of the jurors or the judge, as the case may be. The views of Professor McCormick are also those of Dean Wigmore. See IX J. Wigmore, Evidence § 2594 a (3d Ed. 1940).

For full discussions of the three approaches listed by McCormick see: Sholly v. Annan, 450 F.2d 74 (9th Cir. 1971); Bolam v. Louisville & Nashville R. R., 295 F.2d 809 (6th Cir. 1961); Alamo v. Del Rosario, 69 U.S.App.D.C. 47, 98 F.2d 328 (1938); Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144 (1931); Elpers v. Kimball, 366 S.W.2d 157 (Ky.App.1963); Hill v. West End St. Ry., 158 Mass. 458, 33 N.E. 582 (1893); Bradshaw v. Stieffel, 230 Miss. 361, 92 So. 2d 565 (1957); Vermaas v. Heckel, 170 Neb. 321, 102 N.W.2d 647 (1960); Harlow v. Leclair, 82 N.H. 506, 136 A. 128 (1927); Bailey v. Mead, 260 Or. 410, 492 P.2d 798 (1972); Lytle v. Reagan, 256 S.C. 269, 182 S.E.2d 302 (1971). In addition see Note, 5 Western Reserve L.Rev. 398 (1954).

After considering the three approaches to the problem of a party's "self-disserving" testimony, it is our opinion that the facts of this case do not require us to adopt any one of them, and it would, therefore, be inappropriate for us to attempt to formulate a general rule for determining the circumstances under which a party's adverse testimony will defeat his action.

Mrs. Cogdill testified to concrete facts, not matters of opinion, estimate, appearance, inference or uncertain memory. Her testimony was deliberate, unequivocal and repeated. It left no room for the hypothesis of mistake or slip of the tongue. Her statements were diametrically opposed to the essential allegations of her complaint and destroyed the theory upon which she had brought her action for damages. They clearly indicated her intentions not only to renounce her suit, but to acknowledge that she had never had a cause of action against her husband.

As set out in the preliminary statement, plaintiff testified on voir dire that she never read the complaint she verified; that had she read it she would never have stated her husband was operating his automobile in the manner alleged therein; and that he was not negligent in any way. Even after being warned of the consequences of perjury, she testified before the jury deliberately, unequivocably, and persistently that at the time of the collision her husband, having given the proper turn signal, was in his proper lane awaiting the opportunity to make a turn. Thereafter her attorney did not seek to elicit any remedial testimony from her. Instead, in the absence of the jury, he assured the court that, although he was not present when Mrs. Cogdill signed the verification to her complaint, if she said she did not read it, she didn't read it.

A civil action is ordinarily commenced by filing with the court a complaint, which "shall contain" a short and plain statement of the claim "sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing the pleader is entitled to relief, and (2)[a] demand for judgment for the relief to which he deems himself entitled." G.S. § 1A-1, Rules 3 and 8. If, at the close of the evidence, a plaintiff's own testimony has unequivocally repudiated the material allegations of his complaint and his testimony has shown no additional grounds for recovery against the defendant, the defendant's motion for a directed verdict should be allowed.

Even Professor McCormick, the chief exponent of the liberal view that generally a party should not be concluded by his adverse testimony, recognized that in some situations a court would be fully justified in giving a party's adverse testimony the effect of a judicial admission. He wrote: "This much, however, should be conceded, even under the liberal view. . . . [I]f a party testifies deliberately to a fact fatal to his case, the judge if his counsel, on inquiry, indicates no intention to seek to elicit contradictory testimony, may give a nonsuit or directed verdict. Under these circumstances, the party and his counsel advisedly manifest an intention to be bound." McCormick, supra at page 638, n. 82.

The circumstances of this case come well within the McCormick concession. In our view, to permit plaintiff Cogdill's judgment against defendant Cogdill to stand would be contra bonos mores and a violation of public policy. The Court of Appeals correctly held that defendant's motion for a directed verdict should have been allowed.

Two final comments seem appropriate. The three cases which were consolidated for trial grew out of the same two-car collision. They were tried together because all the claimants were injured in one and the same accident. The jury's extraordinary verdicts, which permitted passengers to recover from the drivers of both vehicles and the drivers to recover from each other, clearly indicate that the jurors never saw the cases whole or understood the applicable law. Indeed, they seem to have assessed damages on the theory they were dividing the proceeds of no-fault insurance policies.

Confusion might have been avoided if the issues relating to liability had been reduced to the following: (1) Was the negligence of Cogdill a proximate cause of the collision between his automobile and the automobile driven by Scates? (2) Was the negligence of Scates a proximate cause of the collision between the Ruff automobile which she was driving and the automobile driven by Cogdill? (3) Was Scates operating the Ruff automobile as the agent of Ruff? (On this third issue a peremptory instruction on the uncontradicted evidence would have been appropriate.)

The remaining five issues would have related to the damages, if any, each claimant was entitled to recover on account of injuries sustained as a result of the collision. Whether the jury would have considered none or only some of these issues would have depended upon their answers to issues (1) and (2). Issue (3) would have been material only if issue (2) had been answered YES.

For the reasons stated the decision of the Court of Appeals remanding this case to the Superior Court for entry of judgment allowing defendant Cogdill's motion for a directed verdict is

Affirmed.