Lorbacher v. Talley

123 S.E.2d 477 (1962) 256 N.C. 258

P. L. LORBACHER, Jr.
v.
Walter T. TALLEY T/A Talley's Fruit and Produce Company.

No. 675.

Supreme Court of North Carolina.

January 12, 1962.

Everett, Everett & Everett, Durham, for plaintiff, appellant.

Bryant, Lipton, Strayhorn & Bryant, Durham, for defendant, appellee.

BOBBITT, Justice.

At trial, plaintiff testified in support of his allegations. Defendant, on cross-examination of plaintiff and by evidence in direct contradiction of plaintiff's testimony, sought to impeach plaintiff and thereby discredit plaintiff's testimony. Indeed, the testimony of one witness for defendant was to the effect plaintiff attempted by bribe to induce him to testify in plaintiff's favor.

In rebuttal, plaintiff offered witnesses who, if permitted, would have testified that plaintiff's general reputation in the community was good. Two such witnesses were called to so testify. The court sustained defendant's objections to such testimony. The court, having ruled such testimony incompetent, refused to permit plaintiff to call other witnesses to give testimony of like import. Plaintiff excepted to said rulings.

Defendant contends the court's said rulings were correct, citing Norris v. Stewart's Heirs, 105 N.C. 455, 10 S.E. 912. There the plaintiff alleged that Stewart, the original defendant, by false and fraudulent representations, obtained the signature of the father of the feme plaintiff to a deed of conveyance. Prior to trial, Stewart died and his heirs were made parties defendant in his stead. It was held the court properly excluded testimony, offered by defendant as substantive evidence, that Stewart's general character (reputation) was good. Norris v. Stewart, supra, is in accordance with the rule that, subject to exceptions, evidence of the good or bad character of a party is inadmissible as substantive evidence. Stansbury, North Carolina Evidence § 103.

In Wilson Lumber & Milling Co. v. Atkinson, 162 N.C. 298, 78 S.E. 212, 49 L.R.A.,N.S., 733 the defendant Rabb, charged with fraud, testified as a witness in his own behalf. Thereafter, he offered witnesses who testified to his good general character. The trial judge instructed the jury that the evidence as to Rabb's good general character should be considered "as substantive as well as corroborative evidence in passing on the issue of fraud." Citing Norris v. Stewart, supra, this Court held the said character evidence was not competent as substantive evidence and a new trial was awarded on account of the erroneous instruction. But, as stated by Walker, J.: "It was competent to prove his good character, so far as necessary to sustain his credibility as a witness."

Where a party testifies, it is competent to show his general reputation as bearing on his credibility as a witness. Nance v. Fike, 244 N.C. 368, 93 S.E.2d 443; Morgan v. Carolina Coach Co., 228 N.C. 280, 45 S.E.2d 339; Kirkpatrick v. Crutchfield, 178 N.C. 348, 351, 100 S.E. 602.

As stated by Smith, C. J., in Jones v. Jones, 80 N.C. 246, 250: "In whatever way the credit of the witness may be impaired, it may be restored or strengthened by this [proof of prior consistent statements] or any other proper evidence tending to insure confidence in his veracity and in the truthfulness of his testimony." Bowman v. Blankenship, 165 N.C. 519, 81 S.E.2d 746; Brown v. Loftis, 226 N.C. 762, 764, 40 S.E.2d 421; Stansbury, op. cit. § 50. Where a party testifies and the credibility of his testimony is challenged, testimony that his general character is good is competent and proper evidence for consideration as bearing upon the truthfulness of his testimony.

Here, the excluded testimony was not offered as substantive evidence bearing upon what occurred on July 26, 1958, in defendant's place of business, but as bearing upon plaintiff's credibility as a witness at the time of trial. See Stansbury, op. cit. § 116. It was competent and should have been admitted for this limited purpose. The exclusion thereof was prejudicial error and entitles plaintiff to a new trial.

There is merit in the assignments of error directed by plaintiff to designated portions of the charge relating to the duty owed by defendant to (1) a trespasser, (2) a licensee and (3) an invitee. Since a new trial is awarded on another ground, it is deemed unnecessary to discuss these assignments. However, it seems appropriate to call attention to the fact that plaintiff bases his action solely on the alleged personal negligence of defendant, not on any defective condition of defendant's premises.

New trial.