Johnson v. Massengill

• Decision Date: 28 January 1972
• Docket Number: No. 143,143
• Parties: L. E. JOHNSON v. James MASSENGILL.
• Court: North Carolina Supreme Court

Page 168

186 S.E.2d 168

280 N.C. 376

L. E. JOHNSON v. James MASSENGILL.

No. 143.

Supreme Court of North Carolina.

Jan. 28, 1972.

N. Leo Daughtry, Smithfield, and J. R. Barefoot, Benson, for plaintiff.

Grady & Shaw, by Philip C. Shaw, Four Oaks, and George B. Mast, P.A., Smithfield, for defendant.

LAKE, Justice.

In the oral argument it became clear that the printed record did not disclose the setting in which the evidence, to the admission of which the defendant excepts, was introduced. By stipulation of the parties, the stenographic transcript of the entire trial was filed 'as the correct statement of case on appeal as appropriate.' Under the special circumstances of this case, we have so considered it.

Mrs. Garland Barefoot, called as a witness for the plaintiff prior to the offering of any evidence by the defendant, testified that she and her husband operate the Meadow Farm Storage and have been in the potato business 'for quite a while.' She knows the defendant and has had dealings with him in potatoes over the past several years. She knows his general reputation and character in the community. In response to the question, 'What is it?' she replied, 'With us it is bad.' The defendant moved to strike. The witness then stated, 'With us, I don't know I am not going to say about other people. I don't have anything to do with other people.' The defendant's motion to strike was overruled. The witness then said she dealt with Mr. Massengill in 1968 and purchased his potatoes.

The court sustained defendant's objection to the plaintiff's question to this witness, 'What was the agreement on his part with reference to the quality of the potatoes?' The ground for the ruling was that the plaintiff was not inquiring about the transaction involved in the present action. The court also sustained the defendant's objection to this question by the plaintiff, 'Mrs. Barefoot, did he false pack any potatoes on you?'

On cross-examination, this witness testified that she doesn't have anything against the defendant. She knows nothing about the transaction involved in the present action. She purchased a crop of potatoes from the defendant in the past. Employees of the witness and her husband picked up these potatoes, put them in boxes, loaded them and 'took them in.'

On re-direct examination, this witness testified that those potatoes were all right 'because our crew picked them up.' The court sustained the defendant's objection to this question by plaintiff: 'Was the potatoes that his crew picked up all right?'

Mrs. Barefoot was succeeded on the witness stand by her husband, Garland Barefoot, who testified on direct examination that he has been in the business of growing sweet potatoes and operating a warehouse for the storage of potatoes twelve or fifteen years and had business dealings with the defendant over that period of time. In response to the question, 'What has been the extent of the business you have done with him?' the witness replied, 'It turned out to be satisfactory.' The defendant objected that the answer was not responsive. The court sustained this objection and stated that the witness might answer the question. Thereupon, the witness testified that he did business with the defendant on two occasions. He knows the defendant's general reputation and character in the community. 'It generally is not good.' The first time he knew the defendant the witness and his wife purchased some potatoes from him.

The court sustained objections by the defendant to the following questions: 'Did that transaction turn out satisfactory?' and, 'Was there any false packing of potatoes?' This concluded the direct examination of this witness.

On cross-examination, Mr. Barefoot testified that the defendant has stored potatoes with him. Sometimes the witness buys potatoes stored by others in his warehouse. On one occasion the defendant first sold potatoes stored in the witness' warehouse to the plaintiff in the present lawsuit. The witness did not like this because the defendant 'didn't stand up to the agreement.' He protested vigorously and, as a result, 'got' those potatoes.

To the defendant's question, 'And they were stored in your warehouse and you wanted the potatoes, didn't you?' the witness responded, 'There is a big detail about that.' The defendant's counsel said, 'Answer my question.' Thereupon, plaintiff's counsel, out of order, interposed: 'All right. Go ahead and explain it. He's asked for it, explain it.'

Thereupon, the witness, still on cross-examination, testified that on that occasion the defendant tried to sell his potatoes to the witness for a price which the witness was not willing to pay, so the defendant stored the potatoes in the witness' warehouse and they agreed that at the appropriate time the defendant and the witness would sell the potatoes and would 'split the profit' realized over and above the price which the defendant had asked the witness to pay.

At this stage, the plaintiff's attorney, out of order, injected this question, 'Did he keep the agreement?' The witness replied, 'No, he didn't.' To this there was no objection by the defendant, whose counsel continued the cross-examination after the court admonished counsel to examine the witness one at a time.

On such further cross-examination, the witness testified that the potatoes in question were the property of the defendant and he had a right to sell them 'but he didn't have a right to break a promise.' The witness 'got the potatoes' at the price which the plaintiff in the present action had then offered the defendant for them. The witness paid the defendant such price because 'I had to do it or not get the potatoes.' Defendant's counsel then asked, 'And you fell out with Mr. Massengill because of that transaction, didn't you?' The witness replied, 'Well, I told him I never wern't going to have anything else to do with him.' Defendant's counsel then asked, 'And that is what you based your character-opinion on, isn't it?' The witness answered, 'Well, there is a big tale in before that if you want me to tell you?' The plaintiff's counsel then interjected, again out of order, 'Go ahead and explain what it is?' Defendant's counsel, however, said: 'Wait a minute, answer my question. You based your character question and answers, they were based on what you have just described here to the jury?' The witness said, 'I will say yes.'

On re-direct examination by the plaintiff, this witness was asked, 'Was there anything in addition to that you based it (his opinion) on?' Over objection, he answered that the time he met the defendant he went to the defendant's field and looked at the potatoes being dug. He agreed to buy the defendant's whole crop 'if he would do his job as good as he was doing it then.' The defendant dug potatoes for two or three more days and the witness stacked them in the warehouse. One morning the defendant sent three truck loads to the warehouse. The witness looked at them and told the defendant's sons, who had brought them: 'Them ain't the kind of potatoes we'd agreed on. You will have to leave with them.' This the defendant's sons did. The objection to those potatoes was, 'There were potatoes in there that shouldn't be in there and they were slack packed and I told the boys, I said I don't want no such potatoes in my house taking room when they are supposed to be good ones.'

On re-cross-examination, the defendant's counsel asked: 'I will ask you again now, if the business transaction that you yourself have had with Mr. Massengill if that isn't what you based your character evidence on?' The witness replied: 'That's right, and I was told by people or people told me beforehand that you'd better not deal with him, but I went ahead and did.' The witness got 'upsot' because the defendant didn't stand up to the agreement.

At this stage, the defendant moved to strike the testimony of this witness, which motion was overruled.

The defendant testified in his own behalf at length. In the course of his testimony on direct examination, he set forth his version of the transaction with the witness Garland Barefoot. The defendant also offered, through several other witnesses, evidence of his own good character and reputation.

Ordinarily, evidence as to the good or bad character of a party to a civil action who has not become a witness is not admissible, being irrelevant to the issues. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22; Merrill v. Tew, 183 N.C. 172, 110 S.E. 850; Marcom v. Adams, 122 N.C. 222, 29 S.E. 333; Stansbury, North Carolina Evidence, 2d Ed, § 103. We need not determine whether the nature of the present action is such as to bring this case within an...