Bridges v. Graham

• Decision Date: 07 June 1957
• Docket Number: No. 740,740
• Citation: 98 S.E.2d 492,246 N.C. 371
• Parties: Maggie BRIDGES, Administratrix of the Estate of Alex Bridges, Deceased, v. Maggie J. GRAHAM, Administratrix of the Estate of William Graham, Deceased.
• Court: North Carolina Supreme Court

Page 492

98 S.E.2d 492

246 N.C. 371

Maggie BRIDGES, Administratrix of the Estate of Alex Bridges, Deceased, v. Maggie J. GRAHAM, Administratrix of the Estate of William

Graham, Deceased.

No. 740.

Supreme Court of North Carolina.

June 7, 1957.

Mason & Williamson, Laurinburg, for defendant, appellant.

Joe M. Cox and Jennings G. King, Laurinburg, for plaintiff, appellee.

PARKER, Justice.

Defendant has seven assignments of error: five as to the admission of evidence, and two as to the failure of the court to allow her motion for judgment of nonsuit, first made at the close of plaintiff's case, and renewed at the close of all the evidence.

The five assignments of error as to the admission of evidence all relate to the admission in evidence of prior comsistent signed statements of certain of plaintiff's witnesses for the purpose of corroborating these witnesses, which statements were marked as Exhibits. Four times the court instructed the jury that these statements were offered and admitted in evidence only for the purpose of corroboration, if the jury found the statement corroborated the witness who made the statement: that the statements were not substantive evidence.

Each of these five assignments of error are phrased in identical words, except for the numbers of the Exhibit, the Exception and the record page. The first assignment of error reads: 'For that the Court erred in overruling the defendant's objection to the introduction of Plaintiff's Exhibit No. 1; As set forth in Exception #2 (R.p. 12).' Nothing else appears in this assignment of error, and in the other four relating to the admission of evidence. These five assignments of error do nothing more than refer to the pages of the record where the statements are set forth.

An assignment of error as to the admission of evidence should be definitely and clearly presented, and the Court not required to go beyond the assignment itself to learn what the question is. Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829. In McDowell v. J. S. Kent Co., 153 N.C. 555, 69 S.E. 626, 627, the Court said: ' * * * the points determinative of the appeal, shall be stated clearly and intelligibly by the assignment of errors, and not by referring to the record.' In Thompson v. Seaboard Air Line R. R., 147 N.C. 412, 61 S.E. 286, 287, the Court quoted this language from 2 Pleadings and Practice, p. 943: 'The assignment must be so specific that the court is given some real aid, and a voyage of discovery through an often voluminous record not rendered necessary.''

The purported assignments of error as to the admission of evidence do not throw the slightest light upon the questions of evidence we are asked to pass on, and do not comply with Rule 19(3) and Rule 27 1/2% of our Rules of Practice in this Court. Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735; Ellis v. Atlantic Coast Line R. R. Co., 241 N.C. 747, 86 S.E.2d 406; State v. Mills, 244 N.C. 487, 94 S.E.2d 324; Tillis v. Calvine Cotton Mills, 244 N.C. 587, 94 S.E.2d 600. What the Court desires, and it would seem the least that an appellate court requires, is that assignments of error as to the admission of evidence shall state with particularity the alleged incompetent evidence, and not require a search through the record to find the challenged evidence.

While the assignments of error as to the admission of evidence are insufficient, we have examined the statements admitted in evidence, and no prejudicial error appears in their admission in evidence for the sole purpose of corroboration. The admission of these prior consistent statements by the witnesses before they were cross-examined was within the discretion of the trial judge. Gregg v. Mallett, 111 N.C. 74, 15 S.E. 936; Burnett v. Wilmington, N. & N. R. R., 120 N.C. 517, 26 S.E. 819; State v. Smith, 218 N.C. 334, 11 S.E. 2d 165; State v. Sutton, 225 N.C. 332, 34 S.E.2d 195; Stansbury's North Carolina Evidence, p. 82 and note 27 on that page.

This is a summary of plaintiff's evidence: Plaintiff is the administratrix of Alex Bridges, and defendant the administratrix of William Graham. When the Ford automobile overturned and wrecked on Sunday morning, 18 December 1955, about 8:15 a. m., Alex Bridges, William Graham and his uncle, John Graham, were riding in it, and Alex Bridges and William Graham were instantly killed and John Graham was injured. About 5:00 p. m. on the Saturday before his death William Graham and his brother, Hardy, came to John Graham's home in a Ford automobile. William Graham was driving the automobile when he came, and was driving it when he left. When William Graham was told John Graham was not at home, he left. About 6:30 a. m. the next day William Graham drove the Ford automobile again to John Graham's home. Alex Bridges came with him. In about 30 minutes William Graham, Alex Bridges and John Graham left in the Ford automobile, with William Graham driving. John Graham's home is about 12 miles from Laurinburg.

Webster McCall's home is 3 or 4 miles from John Graham's home. On this Sunday morning William Graham, Alex Bridges and John Graham came to Webster McCall's home in a grey Ford automobile. Webster McCall testified: They arrived about 6:30 a. m.; 'I am estimating the time about ten months after it happened.' William Graham said to McCall: 'Let me show you what I have under the hood of my car, want you to hear it sound off.' william Graham got in the car, cranked it up, and McCall said: 'Boy, it sounds good.' There was a new motor under the hood. McCall had seen William Graham drive this automobile before: he always saw William Graham with this automobile. In 25 or 30 minutes after their arrival the three persons who came in the automobile, left in it. McCall was in his house when they arrived and left, and does not know who was driving.

Louise McCall, wife of Webster McCall, was at home this Sunday morning. She does not know who was driving the automobile. On cross-examination she testified: 'Alex Bridges told me that he drove the car up there, and guessed he would drive it off. They all looked like they had been drinking.'

Ernest Monroe operates a store and a Purol Service Station on U. S. Highway about 10 or 12 miles from Laurinburg. On this Sunday morning between 7:00 and 8:00 a. m. William Graham drove a grey Ford automobile up to Monroe's gas tank, and stopped. Monroe testified: 'He (William Graham) had bought gas from me several times; he was driving at these times; I never saw anybody else driving his car.' When the automobile came up, John Graham was sitting beside William Graham on the front seat, and Alex Bridges was lying on the back seat with his shoes off. William Graham bought and paid for 5 gallons of gas. Alex Bridges bought a package of cigarettes. After these purchases were made William Graham drove the automobile away. A little after 8:00 a. m. Monroe heard William Graham and Alex Bridges had been killed.

On this Sunday morning about 8:00 o'clock Jesse Snead was driving an automobile on U. S. Highway 15 in the direction of Laurinburg. A grey Ford automobile passed him going toward Laurinburg at a speed of 70 to 75 miles an hour. Snead testified three colored men were in the front seat, and he also testified, 'it was my presumption that three were on the front seat.' Less than a minute later and about a mile down the road from where this grey Ford automobile passed him, Snead saw this grey Ford automobile turned over on the left hand side of the highway and three bodies scattered 25 to 30 feet apart--one on the shoulder of the highway near the automobile and two on the hard-surfaced part of the highway. William Graham and Alex Bridges were dead. John Graham, a large man of some 260 pounds in weight, was unconscious and 'bleeding awful bad.' One of the dead men was barefooted. Shoes were at the scene of the wreck. The automobile and three bodies were lying in the residential section of Laurinburg in front of J. E. King's home. At that place is a curve in the highway.

Between 8:00 and 8:15 o'clock this Sunday morning J. E. King was in his kitchen reading the morning paper. He heard a noise, looked and saw an automobile with both ends four feet off the ground. He testified: 'It (the automobile) started leaving the highway between me and Mr. Ned McRae's, then it came on the curve and when it started back across the road, turning over.' King went out to the wreck. He saw two men dead, and one unconscious, bleeding mighty bad, and gasping for breath. King saw tracks on the right hand shoulder for about 100 feet, and clear markings on the highway, when the automobile got back on the highway. One of the dead men was barefooted. A pair of shoes was on the highway.

H. C. Gardner, a police officer of Laurinburg, arrived at the scene of the wreck on U.S. Highway 15 at 8:25 a. m. It occurred about 100 yards within the town's corporate limits. He saw lying on the road and shoulder three men: two dead, one unconscious. One of the men was barefooted. He called an ambulance. He testified: 'There were marks from the center of the curve down the right hand shoulder of the road where the car had traveled in a skid. The marks 138 feet from the center of the curve lead diagonally to the left side of the highway, and then marks for 60 feet down the...