Lawton v. George A. Yancey Trucking Co.

ORR, Judge.

Plaintiff contends that the trial court erred in admitting evidence that Gulley’s vehicle crossed the center line. There are three areas of testimony that plaintiff contends were inadmissible. First, since Riggs died prior to the second trial, his deposition at the first trial was allowed to be read into evidence at the second trial. In that deposition Riggs testified that Gulley’s vehicle had crossed the center line moments before impact. Second, Mabel Davenport, who testified at the first trial, was allowed over objection to state that she saw Gulley’s truck pull over into the oncoming lane and collide with Riggs’ vehicle. Third, Dr. Rolin Barrett, an expert witness, testified that in his opinion the collision occurred in Riggs’ lane. Plaintiff maintains that the trial court improperly admitted this evidence, thus allowing defendants to relitigate the same issues which were the subject of a prior judicial determination. We disagree.

At the first trial all admissible evidence was presented for the purpose of determining whether Riggs was negligent and whether Gulley was negligent. The jury determined that Gulley was not negligent. However, the jury could not reach a verdict on the issue of Riggs’ negligence and a mistrial was declared as to that aspect of the case.

Plaintiff now contends that the jury in the retrial of the case can only hear a select portion of the evidence that was originally introduced at the first trial. Such a conclusion is grounded in neither logic nor law. The jury must hear all admissible evidence with such limiting instructions as the situation dictates.

In this case, the trial court specifically instructed the jury before any evidence was presented as follows:

It is the law of the case in this matter that the operator of the pickup truck, John Gulley, deceased, was not negligent in causing the collision. That is, you are not to concern yourself with whether or not the driver of the pickup truck was negligent in causing this collision because it has been judicially determined that he was not and that issue is not before you.

This instruction was also included in the court’s final charge to the jury. Furthermore, plaintiffs counsel emphasized this point in both his opening statement and closing argument.

Plaintiff argues that this Court’s decision in Sanders invoked the doctrine of “law of the case.” He asserts that the trial court should have excluded evidence that Gulley crossed the center line, since the issue of Gulley’s negligence had been previously determined.

In Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673 (1956), the Supreme Court stated:

[A]s a general rule when an appellate court passes on a question and remands the case for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal.

243 N.C. at 536, 91 S.E. 2d at 681-82.

The question of Gulley’s negligence is, in fact, the law of the case, and the trial court so instructed the jury. However, plaintiff would extend the doctrine of the law of the case further by requiring the trial court to exclude evidence as to whether Gulley crossed the center line. That issue was not directly submitted to the jury and thus it could only be surmised as the jury’s conclusion on that factual question. All we know is that the jury found that Gulley was not negligent —nothing more.

“The rule that a decision of an appellate court is ordinarily the law of the case, binding in subsequent proceedings, is basically a rule of procedure rather than of substantive law, and must be applied to the needs of justice with a flexible, discriminating exercise of judicial power.” Id. at 537, 91 S.E. 2d at 682.

Plaintiff advocates that defendants retry this case using only a portion of the evidence available to defendants at the first trial. This would result in an inequitable application of justice. By virtue of the trial court’s instruction as to Gulley not being negligent, plaintiffs rights were adequately protected.

In view of the above, we find no error.

No error.

Judge BECTON concurs. Judge Wells dissents.