Fidelity Bank v. Garner, 8020SC591

• Decision Date: 19 May 1981
• Docket Number: No. 8020SC591,8020SC591
• Citation: 277 S.E.2d 811,52 N.C.App. 60
• Court: North Carolina Court of Appeals
• Parties: The FIDELITY BANK, a North Carolina Banking Corporation, Plaintiff, v. Arnold GARNER, Defendant and Third Party Plaintiff, v. Donald Mack BLUE, Vernon G. Blue, and Vermac Construction Company, a NorthCarolina Corporation of Moore County, Third Party Defendant.

Page 811

277 S.E.2d 811

52 N.C.App. 60

The FIDELITY BANK, a North Carolina Banking Corporation, Plaintiff, v. Arnold GARNER, Defendant and Third Party Plaintiff, v. Donald Mack BLUE, Vernon G. Blue, and Vermac Construction

Company, a NorthCarolina Corporation of Moore

County, Third Party Defendant.

No. 8020SC591.

Court of Appeals of North Carolina.

May 19, 1981.

Thigpen & Evans by John B. Evans, Southern Pines, for plaintiff.

Smith & Gibson by Dock G. Smith, Jr. and Millicent Gibson, Robbins, for defendant and third party plaintiff.

MORRIS, Chief Judge.

During the course of the trial of this matter plaintiff called Ernest Whitley, Jr. as a witness. Whitley was an employee of plaintiff at the time the loan was negotiated. Whitley, representing plaintiff, entered into negotiations in January of 1975 with defendant with regard to the loan to Vermac Construction Company, hereinafter Vermac. Whitley testified as to the origin and significance of plaintiff's Exhibit No. 13 which consisted of lists of equipment owned by Vermac and against which plaintiff, at defendant's request, took a lien in 1975 to secure its loan to Vermac. Defendant had given Whitley the lists and appraisals of the equipment.

Whitley also testified as to plaintiff's demand on defendant for payment of the note. Whitley identified a copy of plaintiff's letter to defendant making demand for payment. The witness also identified and testified as to the contents of a subsequent letter of notice from plaintiff's attorney to defendant which stated that the note was in default and that if payment was not made within the specified time the attorney's fee provision of the note would be enforced.

Defendant's objections to the admission of witness Whitley's testimony were overruled by the court and defendant urges that this was error. Whitley was allowed to interpret and indicate the significance of the contents of the documents even though he was not the author of either. This, defendant maintains, constituted hearsay.

Defendant does not question the admissibility into evidence of either of these documents. Whitley as the officer of plaintiff, who negotiated this loan, had personal knowledge of the facts reflected in both writings. In his capacity as a bank officer these documents were issued and maintained under his direct supervision and control. Therefore, it was not error for him to identify or read from these documents before the court.

Whitley's testimony as to defendant's wish to have the equipment list added to the note as extra security did not relate to the contents of the list itself. Rather, it related to the negotiations between him and defendant prior to the closing of the loan. This was not hearsay.

Nor did Whitley's explanation vary, add to, or contradict the contents of the note. Therefore, there was not a violation of the parol evidence rule. See Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678 (1959).

In his second assignment of error defendant asserts that the court erroneously allowed into evidence the following testimony of witness Whitley:

Q. You mentioned in your testimony that part of this money was to be for the payment of insurance premiums. Do you know who these payments were made to?

A. I don't know for a fact. I understood it was Mr. Garner.

MR. SMITH: I object.

COURT: Overruled. Go ahead.

A. I understood it was to Mr. Garner's agency.

MR. SMITH: Object. Move to strike.

COURT: Overruled. Motion denied. Go ahead.

A. They did business with him, and I assume that's why he wanted to help them get the loan.

Although we do think that this witness's speculation as to the payments of these insurance premiums was hearsay, we do not think that it was sufficiently prejudicial to defendant's case to warrant our granting a new trial. In this instance the issue before the court was whether defendant should be held jointly and severally liable on this note with the third party defendants. The uses to which the borrowed money was put by the borrowers are irrelevant to the issue of liability on the note. If a portion of the loan proceeds were used to pay insurance premiums owed defendant's agency this would demonstrate his reason for endorsing the note but it would not influence his liability on the debt. Therefore, we find the error was not prejudicial.

Similarly, defendant maintains that the allegedly speculative testimony of third party defendant Donald Mack Blue was inadmissible hearsay. Blue's testimony indicated that Garner knew in advance of the subordination by the plaintiff of its security interest in the equipment to that of the Bank of Montgomery. Defendant alleges that the following answer to plaintiff's question was hearsay:

Q. But to your knowledge, he had to know in advance, didn't he?

MR. SMITH: Objection.

COURT: Overruled.

EXCEPTION NO. 10

A. It was my understanding to the Bank that Mr. Garner that he was buying the note from the John Deere people; and he bought the note from them; and therefore he had a first lien on it. Regardless of where the lien came from when he bought that note he picked up the first lien.

We find defendant's claim to be without merit. Exceptions to the admission of evidence will not be sustained when evidence of like import has theretofore been, or is thereafter, introduced without objection. Gaddy v. Bank, 25 N.C.App. 169, 212 S.E.2d 561 (1975), citing, Glace v. Pilot Mountain, 265 N.C. 181, 143 S.E.2d 78 (1965). Immediately prior to the answer under scrutiny the following exchange occurred between plaintiff's counsel and the witness without objection or exception:

Q. Now, to your knowledge, Mr. Garner knew in advance of that subordination he knew that was being done, didn't he?

A. I would say he did. He was writing the insurance on it.

Q. He had the insurance to the Bank of Montgomery, didn't he?

A. It was wrote to the Bank of Montgomery, yes, sir.

Q. He had to deliver an insurance binder to the Bank prior to the loan being made, didn't he?

A. That I don't know.

These answers are of the same import as those to which defendant objected. Therefore, assuming arguendo, that the court erred in admitting the testimony to which objection was made, evidence of like import was admitted without objection, thereby rendering harmless any error the court might have made in admitting the evidence.

During his closing argument to the jury, plaintiff's counsel went outside the record and made the statement, "that the defendant Garner had been previously convicted of lying to a jury." There was evidence that on a prior occasion defendant had been convicted and later pardoned for the offense of insurance fraud. Defendant's motion to strike this statement was allowed, and the judge instructed the jury that the argument was improper and to disregard it. Defendant made a motion for mistrial based upon the inflammatory nature of this statement. This motion was denied. Defendant contends that the denial of his motion for mistrial was prejudicial error.

We disagree. Undoubtedly, plaintiff's counsel should not have made such a remark. However, the record indicates that upon hearing the remark the court took the necessary steps to correct the impropriety.

When a jury is instructed to disregard improperly admitted testimony, the presumption is that it will disregard the testimony. Lacking other proof ... a jury is presumed to be rational.

State v. McGraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980). See Highway Commission v. Pearce, 261 N.C. 760, 136 S.E.2d 71 (1964); Hamilton v. Henry, 239 N.C. 664, 80 S.E.2d 485 (1954). Nothing in this record indicates that the jury would have considered the stricken statement in making their determination.

Ruling on a motion for mistrial in a criminal case less than capital rests largely in the discretion of the trial court. State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966). However, this discretionary power is not unlimited; a motion for mistrial must be granted if there occurs an incident of such a nature that it would render a fair and impartial trial impossible under the law. State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954).

State v. McGraw, supra, at 620, 268 S.E.2d at 179. In this case we do not think the court abused its discretion in denying defendant's motion for mistrial, it having stricken the objectionable statements and cautioned the jury. Therefore, we find that the court's denial of defendant's motion did not constitute reversible error.

Affirmed.

VAUGHN, J., concurs.

BECTON, J., dissents.

BECTON, Judge, dissenting:

I concur in the majority's resolution of every issue except the "jury argument" issue. It is one thing to argue that a witness should not be believed; it is quite another thing to call a witness a liar; and it is yet another thing to tell the jury that a witness has been previously convicted of lying to a jury. Because of the qualitative difference between arguing credibility and placing before the jury, by argument, incompetent and prejudicial matters not supported by the evidence, I respectfully dissent.

I dissent in the face of an incomplete, but not inadequate, record neither the argument of counsel nor the attempted curative instructions were recorded; the record on appeal simply reflects the following:

During plaintiff's counsel's closing argument to the jury, a motion was made for the defendant Arnold Garner by and through his attorney to strike plaintiff's counsel's statement that the defendant Garner had been previously convicted of lying to a jury. The motion to strike was allowed and the judge instructed the jury the argument was improper and to disregard it. A motion for mistrial was made based on the said statement of plaintiff's counsel. Motion denied.

Consequently, I do not know the extent to which the trial judge sought to correct the transgression. I do know, however, that "in a clear case, an appellate court will reverse a judgment because of improper conduct and prejudicial statements of counsel, even...