Wands v. Cauble

154 S.E.2d 425 (1967) 270 N.C. 311

Janet Harper WANDS, Executrix of the Estate of John Wands, Deceased
v.
Marion Franklin CAUBLE, Eugene Oliver and Dan Oliver.

No. 613.

Supreme Court of North Carolina.

May 10, 1967.

Woodson, Hudson & Busby, by Grady Ferrell, Jr., Salisbury, for defendant Cauble.

Shuford, Kluttz & Hamlin by Lewis P. Hamlin, Jr., Salisbury, for defendants Oliver.

J. Allan Dunn, Kesler & Seay, by John C. Kesler, Salisbury, for plaintiff appellee.

HIGGINS, Justice:

The defendant Cauble interposed three objections to the trial: (1) the Court, over his objection, permitted the plaintiff's witness Anthony to testify to the defendant Eugene Oliver's admissions with respect to how the collision occurred; (2) the Court refused to order a mistrial after having permitted plaintiff's witness Bingham to testify the deceased left a widow and son; and (3) the Court failed correctly to charge with respect to G.S. § 20-150(c) and G.S. § 20-153(a).

The plaintiff's witness Anthony, a member of the highway patrol, arrived at the scene of the accident within a few minutes after it occurred. He described in detail the physical evidence, including the position of the vehicles, the damages to them and other pertinent facts. For the purpose of illustrating his testimony, he drew a diagram on the blackboard. A photostat of the drawing is included as one of the exhibits filed here. He testified the front of the Cauble vehicle was in the marked crosswalk on the south side of the intersection. The damage was along the right front fender and the bumper. The plaintiff did not make any inquiry as to statements of either driver. In fact, when the Olivers' attorney sought to elicit Eugene Oliver's statement to the witness, plaintiff's counsel objected. Also, Cauble objected. However, Cauble's counsel also obtained admissions as to statements made by Cauble. Obviously each was attempting to get before the jury his own explanation to the investigating officer as to how the accident occurred. The defendants seem to have broken about even in these inquiries. Plaintiff objected and should not be charged with responsibility for any error either defendant made in trying to get before the jury a statement made in exculpation of his conduct.

Plaintiff's attorney asked plaintiff's witness Bingham about the family of the deceased. The witness answered, "He had a wife and son." Then counsel asked, "Do you know the condition of the son?" Without permitting the witness to answer as to the condition of the son, Judge Falls gave this instruction:

"COURT: Ladies and gentlemen of the jury, you will disregard any questions or answers elicited from this witness upon how many people the deceased, Mr. Wands, had in his family. You will disregard that evidence in its entirety. You will, however, remember what the testimony tends to show as to what the deceased's earnings were at the time of his death."

Immediately after the instruction, each defendant moved for a mistrial. The Court denied the motion. The Court's instruction cured any error. "It is undoubtedly approved by our decisions that the trial court may correct a slip in the admission of isolated or single points of evidence by withdrawing such evidence at any time before verdict and instructing the jury not to consider it." In Re Will of Yelverton, 198 N.C. 746, 153 S.E. 319; McIntosh, N.C. Practice and Procedure, 2d Ed., Vol. 2, Sec. 1513.

In addition to objections similar to those interposed by the defendant Cauble and already discussed, the defendants Oliver contended the Court committed error in permitting the witness Bingham to testify that Mr. Wands would soon be able to retire from his regular employment, and the amount of retirement pay he would be eligible to receive. The objection is based upon the ground that this evidence is not properly admissible as an element of damages. However, eligibility for retirement and the right to share in a fund for that purpose are in the nature of delayed compensation for former years of faithful service. Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R. 2d 939; Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825. The evidence relating to retirement rights was properly admitted.

The drivers of the vehicles involved argued Judge Falls improperly charged the jury with respect to the rights and duties in traversing the intersection. The physical facts described in the testimony of patrolman Anthony (and illustrated by the diagram) painted a clear picture of the manner in which the collision occurred. Cauble tried to switch traffic lanes at the intersection without seeing the movement could be made in safety. Oliver tried to speed through the intersection. The Court did not go afield in the charge. In fact, the instructions covered the legal rules arising on the evidence. In the trial and judgment, we find

No error.