Bowen v. Constructors Equipment Rental Co.

Decision Date01 June 1973
Docket NumberNo. 43,43
Citation283 N.C. 395,196 S.E.2d 789
PartiesHoward G. BOWEN, Sr., Administrator of Estate of Howard Gibson Bowen, Jr., Deceased, v. CONSTRUCTORS EQUIPMENT RENTAL COMPANY, a North Carolina corporation, and JamesStephen Wilson.
CourtNorth Carolina Supreme Court

Morgan, Byerly, Post & Herring, by W. B. Byerly, Jr., High Point, for plaintiff.

Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter and David M. Moore, II, Greensboro, for defendants.

BOBBITT, Chief Justice.

Defendants' Appeal--Part I

Defendants' Assignment of Error No. 1 is based on exceptions to the denial of their motions for a directed verdict and for judgment notwithstanding the verdict. It presents a question of law, namely, whether the evidence was sufficient to require submission to the jury. Kelly v. Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971). In the consideration thereof the evidence is to be taken in the light most favorable to the plaintiff. Cutts v. Casey, 278 N.C. 390, 411, 180 S.E.2d 297, 307 (1971).

There was ample evidence to require submission of the first (negligence) issue and to support the jury's affirmative answer. Defendants do not contend otherwise. They base this assignment solely on their contention that Plaintiff's evidence establishes the contributory negligence of his intestate As a matter of law.

We note that '(a) party asserting the defense of contributory negligence has the burden of proof of such defense.' G.S. § 1--139.

In an action for wrongful death, a directed verdict for the defendant(s) on the ground of contributory negligence should be granted when, and only when, the evidence, taken in the light most favorable to plaintiff, establishes the contributory negligence of plaintiff's intestate so clearly that no other reasonable inference or conclusion may be drawn therefrom. Discrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court. Stathopoulos v. Shook, 251 N.C. 33, 36, 110 S.E.2d 452, 455 (1959), and cases cited.

Defendants base their contention that Howard was contributorily negligent As a matter of law on two propositions: (1) That Howard, by pulling the 'finger' or 'hook' toward another section of pipe, Caused the Cable to make contact with the power line; and (2) that, notwithstanding he had been fully warned of the danger, Howard took hold of the 'finger' or 'hook' without exercising due care to ascertain that he could do so with safety.

Defendants' allegation that Howard Caused the Cable to make contact with the power line is supported solely by the testimony of Wilson contained in the record of his adverse examination offered in evidence by plaintiff.

Prior to the adoption of the Rules of Civil Procedure, G.S. § 1A--1, decisions of this Court had held that a plaintiff, by offering the adverse examination of a defendant, made the deponent his (plaintiff's) witness and thereby represented that he was worthy of belief. Cline v. Atwood, 267 N.C. 182, 186, 147 S.E.2d 885, 888 (1966), and cases cited. Under these decisions, the plaintiff was not allowed to impeach defendant by attacking his credibility but was permitted to offer contradictory testimony of other witnesses.

Rule 26(e), which supersedes prior rules in respect of the introduction by a party of the deposition (adverse examination) of An adverse party, provides:

'(e) Effect of taking or using depositions.--A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, But this shall not apply to the use by an adverse party of a deposition as described in section (d)(1). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.' (Our italics.)

Under Rule 26(e) the introduction in evidence by a plaintiff of the adverse examination of the defendant no longer makes the defendant a witness for the plaintiff. Plaintiff does not thereby represent the defendant as being worthy of belief as to each and every aspect of his testimony. He may Impeach him as well as Contradict him.

Rule 43(b), the counterpart of Rule 26(e), applies when a plaintiff, instead of introducing the adverse examination of the defendant, calls the defendant as an adverse witness to testify at trial. In such case, Rule 43(b) permits the plaintiff to 'interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.' In marking the distinction between the introduction and use of the testimony of An adverse party, whether obtained by adverse examination prior to trial or at trial, and the introduction and use of the testimony of a Witness other than a party, whether obtained by deposition or at trial, both Rule 26(e) and Rule 43(b) recognize that the self-interest of the adverse party bears upon the credibility of that portion of his testimony which tends to exculpate him and to place blame upon another.

Both Rule 26(e) and Rule 43(b) are in accord with this forceful statement by Dean Wigmore: 'If there is any situation in which any semblance of reason disappears for the application of the rule against impeaching one's own witness, it is when the Opposing party is himself called by the first party, and is sought to be compelled to disclose under oath that truth which he knows but is naturally unwilling to make known. To say that the first party guarantees the opponent's credibility is to mock him with a false formula; he Hopes that the opponent will speak truly, but he equally perceives the possibilities of the contrary, and he no more guarantees the other's credibility than he guarantees the truth of the other's case and the falsity of his own.' IIIA Wigmore on Evidence, § 916, Chadburn Revision (1970).

Under Rule 26(e) and also by reason of the contradictory evidence of other witnesses, we hold that the credibility and weight of Wilson's testimony were matters for jury determination.

In 32A C.J.S. Evidence § 1040(2), pp. 774--775, this statement appears: 'In recent years statutes and rules of procedure have been enacted in many jurisdictions permitting a party to call his adversary or the latter's employee as a witness without vouching for the credibility of the witness or loss of the right of impeachment. Under such statutes and rules, it has been held that a party calling his adversary as a witness Is not concluded by his uncontradicted testimony, and that the party so eliciting evidence of the adverse party may rely on such portion of his testimony as is favorable to him, and Is not bound by adverse testimony.' (Our italics.)

The italicized portions of the quoted statement are directly supported in respect of Rule 43(b), Federal Rules of Civil Procedure, which is substantially the same as our Rule 43(b) in respect of the matter now under consideration, in the following cases: Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3rd Cir. 1950); Nuelsen v. Sorensen, 293 F.2d 454 (9th Cir. 1961); Feller v. McGrath, 106 F.Supp. 147, 150 n. 4 (W.D.Pa.1952). The opinion in Moran contains this statement: 'Rule 43(b), we think, is utterly inconsistent with any notion about being bound by his testimony. It seems to us that any statement to the effect that a party is bound by the testimony of a witness whom he is free to contradict and impeach is inherently anomalous.' State decisions in accord include the following: Phillips v. Phillips, 29 Mich.App. 127, 185 N.W.2d 168 (1970); Best v. Huber, 3 Utah 2d 177, 281 P.2d 208 (1955); Miller v. Dussault, 26 Cal.App.3d 311, 103 Cal.Rptr. 147 (1972); Isaacs v. National Bank of Commerce of Seattle, 50 Wash.2d 548, 313 P.2d 684 (1957). Cf. P. & N. Investment Corporation v. Rea, 153 So.2d 865 (Fla.App.1963); Bogle v. Conway, 198 Kan. 166, 422 P.2d 971 (1967); Herbert v. Sandia Savings & Loan Association, 82 N.M. 656, 486 P.2d 65 (1971). See also Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Iowa 1969), where Moran was cited to support the same holding under an Iowa rule substantially in accord with our Rule 26(e) and relating specifically to the introduction of the adverse examination of the testimony of an adversary taken before trial. In accord with Schmitt, we hold that the rule applicable to the testimony at trial of an adverse party under Rule 43(b) is equally applicable to the adverse party's testimony under adverse examination under Rule 26(e).

State decisions which hold, subject to certain exceptions, that a party offering the testimony of an adverse party, whether in the form of an adverse examination prior to trial or as a witness at trial, is bound by his adversary's testimony except to the extent it is contradicted or impeached, include the following: Dominick v. Behrends, 130 Ill.App.2d 726, 264 N.E.2d 297 (1970); Williams v. Wheeler, 252 Md. 75, 249 A.2d 104 (1969); Vokroy v. Johnson, 233 Md. 269, 196 A.2d 451 (1964). (But see P. Flanigan & Sons v. Childs, 251 Md. 646, 248 A.2d 473 (1968), and Proctor Electric Co. v. Zink, 217 Md. 22, 141 A.2d 721 (1958).) Readshaw v. Montgomery, 313 Pa. 206, 169 A. 135 (1933). (But see Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970), and Duffy v. National Janitorial Services, Inc., 429 Pa. 334, 240 A.2d 527 (1968).)

There being independent evidence of the negligence of defendants, we hold that plaintiff is not bound by the testimony of Wilson on adverse examination which relates directly to the issue of contributory negligence, an issue on which defendants have the burden of proof. With reference thereto, we hold that the credibility and weight of Wilson's testimony were for determination by the jury. Even so, in the...

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