Goble v. Helms

• Decision Date: 18 October 1983
• Docket Number: No. 8224SC1082,8224SC1082
• Citation: 64 N.C.App. 439,307 S.E.2d 807
• Court: North Carolina Court of Appeals
• Parties: James L. GOBLE and wife Linda Goble v. Bobby N. HELMS and Winn-Dixie Charlotte, Inc.

Page 807

307 S.E.2d 807

64 N.C.App. 439

James L. GOBLE and wife Linda Goble v. Bobby N. HELMS and Winn-Dixie Charlotte, Inc.

No. 8224SC1082.

Court of Appeals of North Carolina.

Oct. 18, 1983.

Byrd, Byrd, Ervin, Blanton, Whisnant & McMahon, P.A. by Robert B. Byrd and Sam J. Ervin, IV, Morganton, for plaintiffs-appellees.

Morris, Golding & Phillips by James N. Golding, Asheville, for defendants-appellants.

WHICHARD, Judge.

EVIDENTIARY RULINGS

Defendants contend the court erred in overruling their objection to a lengthy hypothetical When this case was tried, there was no requirement that expert testimony be in response to a hypothetical question. See G.S. 8-58.12 (1981). When used, however, "a hypothetical question which omits any reference to a fact which goes to the essence of the case and therefore presents a state of facts so incomplete that an opinion based on it would be obviously unreliable is improper, and the expert witness's answer will be excluded." Dean v. Coach Co., 287 N.C. 515, 518, 215 S.E.2d 89, 91 (1975).

                question to plaintiffs' medical witness inquiring "whether [plaintiff-husband's] broken neck and other injuries described could or might have been received in the [64 N.C.App. 443] accident?"   They argue that the question failed to include relevant facts and included irrelevant ones
                

The facts allegedly omitted here, while having some bearing on plaintiff-husband's condition, did not go to the essence of the case so as to present an obviously incomplete and unreliable basis for the expert's opinion. In such situations it is incumbent upon the adversary, if concerned that omitted facts might elicit a different opinion, to supply them on cross-examination. Dean, supra, 287 N.C. at 520, 215 S.E.2d at 92; see also Rutledge v. Tultex Corp., 308 N.C. 85, 91, 301 S.E.2d 359, 364 (1983); Lee v. Tire Co., 40 N.C.App. 150, 154-55, 252 S.E.2d 252, 255-56, disc. rev. denied, 297 N.C. 454, 256 S.E.2d 807 (1979). Defendants here were given an opportunity to cross-examine the witness and supply any additional facts they felt were necessary. Thus, the omission does not require a finding of error.

Nor is the allegedly irrelevant matter, which related to plaintiff-husband's employment and absentee record, sufficiently prejudicial to constitute grounds for a new trial. For examples of irrelevant matter found to be prejudicial, see Ingram v. McCuiston, 261 N.C. 392, 134 S.E.2d 705 (1964); Lindsey v. The Clinic for Women, 40 N.C.App. 456, 253 S.E.2d 304 (1979). We find no merit to this contention.

Defendants contend the court erred in overruling their objection to the following hypothetical question posed to plaintiffs' medical witness:

Doctor, if the Jury should find as facts from the greater weight of the evidence that prior to the time that you saw [plaintiff-husband] on May 5, 1980, that he had been involved in a tractor-trailer accident with a head-on collision, that as a result of that he blacked out or lost consciousness, was not able to stand and had to hold on to a car for support, and was placed on a pallet and transported to the Emergency Room where you saw him, if the Jury should find those things as facts from the greater weight of the evidence in this case, do you have an opinion as to the cause of the unconsciousness or black out condition of this man?

They argue that the phrase "that as a result of that he blacked out or lost consciousness" assumes the answer to the question as part of the statement of facts.

A hypothetical question "should [not] assume those facts sought to be established." Ryder v. Benfield, 43 N.C.App. 278, 286, 258 S.E.2d 849, 855 (1979). It is evident that the words "after that" or "immediately thereafter," rather than "as a result of that," would have more aptly stated the question.

"An objection is waived[, however,] when evidence of the same import is admitted without objection." Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 532, 160 S.E.2d 735, 745 (1968). Here the medical witness testified, without objection, that a direct injury to the head or brain could cause unconsciousness. Plaintiff-husband testified that he had "blacked out" following the accident. On recross counsel for defendants asked the medical witness, "[D]id [plaintiff-husband] have a concussion caused by this accident?"; and they received an affirmative answer.

In light of this and other evidence, we hold defendants objection to thehypothetical question waived, and deem harmless any error from failure to sustain it.

Defendants contend the court erred in overruling their objection to, and denying their motion to strike, the following testimony by plaintiff-wife:

Q. Will you very frankly describe your sexual compatibility now with your husband as compared before this accident?

* * *

A. Well, it's very hard for [him] to relax now, you know, like he used to. And well sometimes we just can't have sexual relations because of that, I believe.

They argue that there was no medical evidence relating to plaintiff-husband's inability to engage in sexual activities, that the pathological cause of an ailment is a scientific question, and that plaintiff-wife's testimony "provides a lay opinion" as to the cause of plaintiff-husband's inability to relax and its relation to his sexual capacities.

While expert opinion on this subject would have been admissible, see G.S. 8-58.13, 1 H. Brandis, North Carolina Evidence § 132, at 511 (1982), it was not required. "The state of a person's health, a person's ability to work or engage in activities, a person's physical appearance and sleeping habits, among other things, are proper subjects of opinion testimony by non-experts." Craven v. Chambers, 56 N.C.App. 151, 157, 287 S.E.2d 905, 909 (1982). Thus, when a witness is "able to describe the state of [a] plaintiff's health after the accident and to compare it with that existing before the accident," exclusion of the witness' testimony is error. Id. at 157-58, 287 S.E.2d at 909; see also Kenney v. Kenney, 15 N.C.App. 665, 669, 190 S.E.2d 650, 653 (1972); 1 H. Brandis, supra, § 129, at 498.

Plaintiff-husband's ability to relax was an aspect of his health as to which opinion testimony by a non-expert was admissible. Plaintiff-wife, by virtue of observation and experience, was well qualified to offer her opinion. We thus find defendants' contention without merit.

Defendants similarly contend the court erred in denying their motion to strike testimony by plaintiff-husband's former employer that plaintiff-husband "was stiff, he was moving and also in his face when he would talk to me he was talking out of one side of his mouth, because one side of his mouth or face was numb." We find this contention equally without merit. As stated above, this is an area where non-expert testimony is permissible as long as the witness had an opportunity to observe the plaintiff. Craven v. Chambers, supra. The witness testified to repeated opportunities to observe plaintiff-husband in his employment situation over a four month period before the accident and at least twice after the accident. His testimony was merely a shorthand statement as to an observed physical fact, and as such its admission was not error. See 1 H. Brandis, supra, § 125. Assuming error, arguendo, it was clearly non-prejudicial in view of substantial other evidence regarding plaintiff-husband's condition of numbness.

Defendants contend the court erred in admitting evidence of plaintiff-husband's prospects regarding future earnings and promotions with the company which employed him when the collision occurred. This evidence was pertinent to a determination of the extent of plaintiff-husband's damages, however, and "great latitude" is allowed in the introduction of such evidence. See Smith v. Corsat, 260 N.C. 92, 95-96, 131 S.E.2d 894, 897 (1963). The right of cross-examination provides the opposing party opportunity to challenge estimates of this nature, see Peterson v. Johnson, 28 N.C.App. 527, 531, 221 S.E.2d 920, 924 (1976), and defendants exercised that right only sparingly. We find no error in the admission of this evidence.

Defendants contend the court erred in admitting, over objection, the following testimony on redirect examination of the medical witness:

Q. If after a person has been involved in an accident and has a broken neck, if later there is an observation of one pupil becoming larger and one smaller at the * * *

same time, that indicates to you as a medical doctor a brain injury?

A. Yes, I think it would indicate that there is something intracranial; right, inside of the skull.

Defendants had cross-examined this witness in several respects relating to injuries to the brain. They thus "opened the door to the question propounded by the plaintiff[s] on re-direct examination," Johnson v. Massengill, 280 N.C. 376, 383, 186 S.E.2d 168, 174 (1972), entitling plaintiffs to examine the witness regarding such matter. See 1 H. Brandis, supra, § 36. We find this contention without merit.

Defendants' final evidentiary contention is that the court erred in admitting certain evidence which it subsequently withdrew and instructed the jury not to consider. "Ordinarily it is presumed that the jury followed [the court's] instruction and the admission is not held to be reversible error unless it is apparent from the entire record that the prejudicial effect of [the evidence] was not removed from the minds of the jury by the court's admonition." Smith v. Perdue, 258 N.C. 686, 690, 129 S.E.2d 293, 297 (1963); see also Driver v. Edwards, 251 N.C. 650, 112 S.E.2d 98 (1960). We have examined the matters complained of in light of the entire record, and we perceive no prejudicial effect warranting a new trial.

INSTRUCTIONS

To instruct on an element of damages, absent evidence thereof, is error. E.g., Brown v. Neal, 283 N.C. 604, 613, 197 S.E.2d 505, 511 (1973). Defendants contend the court erred in instructing that the jury could award plaintiff-husband damages...