Greer v. Whittington

Decision Date14 January 1960
Docket NumberNo. 403,403
Citation111 S.E.2d 912,251 N.C. 630
CourtNorth Carolina Supreme Court
PartiesConley C. GREER v. Odell WHITTINGTON, Jr., and City Sales, Inc.

Averitt & White by James G. White, Winston-Salem, for plaintiff, appellant.

Womble, Carlyle, Sandridge & Rice by H. Grady Barnhill, Jr., Winston-Salem, for defendants, appellees.

PARKER, Justice.

Plaintiff offered evidence tending to show that defendant Whittington drove his automobile against the rear bumper of an automobile plaintiff was driving, causing the automobile plaintiff was driving to turn over, and resulting in injuries to plaintiff. This occurred on a public highway. Defendants stipulated that Whittington at the time was an agent, servant and employee of City Sales, Inc., and acting in the scope of his agency.

Defendants offered evidence tending to show that Whittington was driving his automobile behind the automobile plaintiff was driving, that he noticed two automobiles coming up very close behind him, that he blinked his lights and started around the automobile in front of him, that the automobile in front suddenly swerved to the left, that he swerved to his left, applied his brakes and hit the dirt shoulder of the highway, that the automobile in front hit the dirt shoulder, tried to cut back, and turned over, that his automobile did not hit the automobile in front.

One Henry Berry Cason was a driver of one of the automobiles behind Whittington. He testified as a witness for plaintiff. He testified, inter alia, that the automobile Whittington was driving hit the automobile in front driven by plaintiff. After Cason had been examined in chief, and crossexamined, and after a redirect-examination and a recross-examination, the trial judge asked him twenty-six questions, to all of which plaintiff excepted. Plaintiff assigns this as error, contending that the questions asked by the judge amounted to a crossexamination of the witness, and were an expression of opinion by the court in violation of N.C.G.S. § 1-180.

N.C.G.S. § 1-180 does not apply to the charge alone. In re Bartlett's Will, 235 N.C. 489, 70 S.E.2d 482. This statute prohibits a trial judge from asking questions which amount to an expression of opinion as to what has or has not been shown by the testimony of a witness, and from asking a witness questions for the purpose of impeaching him or casting doubt on his testimony. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; In re Bartlett's Will, supra.

In Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180, 181, it is said: 'It is not unusual nor improper for a trial judge to ask questions of a witness to make clear his testimony on some point, and sometimes to facilitate the taking of testimony, but frequent interruptions and prolonged questionings by the court are not approved and may be held for prejudicial error if this tends to create in the minds of the jurors the impression of judicial leaning to one side or the other.' However, a trial judge in asking a witness competent questions to obtain a proper understanding or clarification of what a witness has said or meant to say, or to bring out some fact overlooked, should be careful to prevent by word or manner what may be understood by the jury as the direct or indirect expression of an opinion on the facts. State v. Harvey, 214 N.C. 9, 197 S.E. 620.

Plaintiff's complaint alleges that the time of the occurrence was about 6:00 o'clock p. m. on 11 October 1957. He states in his brief: 'The court asked the witness for the plaintiff, Henry Cason, twenty-six questions concerning his whereabouts on the morning prior to the collision in question.'

While we do not approve of a trial judge asking a witness so many questions, yet, an examination of these questions in the light of all the facts and attendant circumstances disclosed by the record up to that time shows that the questuons asked by the judge were for the purpose of obtaining a proper understanding and clarification of the testimony. We are unable to perceive any substantial basis for the contention that these questions amounted to a cross-examination of Cason, or were asked for the purpose of impeachment, or amounted to the expression of an opinion by the judge, or were of such a prejudicial nature as to have had any appreciable effect on the results of the trial below. All the assignments of error to these twenty-six questions by the judge are overruled. State v. Humbles, 241 N.C. 47, 84 S.E.2d 264; Andrews v. Andrews, supra; State v. Perry, supra. The cases relied on by plaintiff are clearly distinguishable.

There had been a strike at Holly Farms Poultry Company. The drivers had gone back to work, and 11 October 1957--the day plaintiff was injured--was the date of an election to determine whether the Teamsters' Union would represent the drivers. The union lost the election. Plaintiff and his witnesses, except two doctors and his wife, were members of the union, and had been out on strike. Whittington is president of City Sales, Inc., which, prior to 11 October 1957, had leased equipment to Holly Farms Poultry Company. The day of the election there had been a fight between Raymond L. Maynard, a striker, and James Smith, a non-striker, both drivers for the Holly Farms Poultry Company. One of the two automobiles behind Whittington, when he started to pass the automobile driven by plaintiff was an automobile owned by Maynard, and driven by Albert Motes.

J. B. Wiles, a witness for defendants, testified in chief: On 11 October 1957, he was a guard or watchman at Holly Farms Poultry Company. About five or six o'clock p. m., James Smith came to the plant. He had blood and skinned places on his face. As a consequence of what Smith told him, he went to look for Maynard at several places. Later he heard of the wreck in which plaintiff was injured, and went to the scene. The automobile plaintiff had been driving had been wrecked. The men who had been in it were not there. He and another officer looked at Whittington's automobile, and found no marks on it. He doesn't remember whether Maynard's automobile was there or not. He testified on cross-examination: 'I was a guard at the plant. It was my duty to make arrests. I had authority to arrest anyone breaking about the plant there or anywhere in the town; I was a policeman and still am. I was paid by Holly Farms; neither the Town nor the County paid me anything. I received some fees for my work. There were some fees I received; they were not fees for appearance in court, they were fees for arrests, for speeding tickets, or parking tickets, anything. I suppose the defendants paid those, I don't know. I did not receive any County funds or Town funds at all. I received the witness fees and arrest fees from the Town; I suppose they were in turn collected from defendants as part of the costs.' At this point the judge said: 'What difference would any of that make?' Counsel for plaintiff replied: 'I will ask him a question, I think in that regard.' The judge: 'It seems a waste of time about it. I will say to the jury it doesn't make any difference.' Plaintiff excepted, exception 28. The judge asked counsel what he was objecting to. Counsel replied, to the court's remarks. The judge replied he would overrule the objection. Counsel moved to strike it out. The judge sent the jury to its room, and the following proceedings were had in the absence of the jury, to which plaintiff excepted, exception 29. There were more remarks between the judge and counsel, and then the witness on cross-examination testified in substance: He has been working for the Poultry Farm since 1 February 1957 as a guard. He is a brother of Hoke Wiles, who testified for defendants. He knows defendant Whittington. He knows plaintiff and his witness, John Orr. He doesn't recall seeing them around the plant that day. He had not been employed specifically to deal with the strike and the labor difficulties there, but just generally as a guard or watchman. He did not see the collision. When he arrived at the scene, the occypants of the automobile had left. Plaintiff has no other...

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