Keller v. Caldwell Furniture Co.

• Decision Date: 17 September 1930
• Docket Number: 512.
• Citation: 154 S.E. 674,199 N.C. 413
• Parties: KELLER v. CALDWELL FURNITURE CO.
• Court: North Carolina Supreme Court

154 S.E. 674

199 N.C. 413

KELLER v. CALDWELL FURNITURE CO.

No. 512.

Supreme Court of North Carolina

September 17, 1930

Appeal from Superior Court, Caldwell County; Harding, Judge.

Action by Yancey Keller against the Caldwell Furniture Company. Judgment for plaintiff, and defendant appeals.

No error.

Corroborating evidence of impeached witness may include previous statements whether made pending controversy or ante litem motam.

Action for damages for personal injury. At the time of his injury the plaintiff was a minor and an employee of the defendant. He was engaged in the work of tailing a planer, i. e "taking away the timbers after they went through the machine." The planer was run by a belt and pulley. The pulley was very near the floor and was not incased. There is evidence that the floor was greasy and uneven. The plaintiff's narrative of the injury is as follows "When we got the truck rolled up to the machine I started around to my place where I was to be, and just as I made the turn to go around the floor I stepped on a block and my foot came out from under me and the pulley caught me by the foot and slung me 10 or 12 feet." It became necessary to amputate his right foot. Other relevant facts are set out in the opinion.

Issues as to the defendant's negligence, the plaintiff's contributory negligence, the statute of limitations, the bar of a judgment in a former action, and damages were answered in favor of the plaintiff. Judgment for the plaintiff, and appeal by the defendant.

Mark Squires, of Lenoir, and W. A. Self, of Hickory, for appellant.

D. L Russell, of Hickory, and W. C. Newland, of Lenoir, for appellee.

ADAMS J.

The first five exceptions are without substantial merit. The testimony to which they relate was admissible as tending to show that the plaintiff's injury affected his ability to perform physical labor and to earn money. Wallace v. R. R., 104 N.C. 442, 10 S.E. 552; Hansley v. R. R., 115 N.C. 611, 20 S.E. 528, 32 L. R. A. 543, 44 Am. St. Rep. 474; Rushing v. R. R., 149 N.C. 161, 62 S.E. 890; Hargis v. Power Co., 175 N.C. 31, 94 S.E. 702. The exceptions are not within the principle stated in Shepherd v. Lumber Co., 166 N.C. 130, 81 S.E. 1064.

The second assignment of error questions the competency of evidence and the propriety of remarks made by one of the plaintiff's attorneys in his address to the jury. The plaintiff was under cross-examination; he testified that after he was hurt he worked for the defendant. The defendant's counsel then asked, "Why did you quit?" The plaintiff answered, "They ran me off, said the insurance wouldn't allow them to work me." The defendant's motion to strike out the answer was denied. Exception 7.

On his direct examination Joe Whisnant, stepfather of the plaintiff, testified after objection by the defendant, that Mr. Beard, superintendent of the factory, told him that the insurance company would not allow the defendant to keep the plaintiff in its service. Exception 10.

In the concluding argument one of the counsel for the plaintiff used substantially this language: "The plaintiff told (the defendant's attorney) that the Insurance Company would not let him work--what has the Insurance Company got to do with the case? Since when has it happened that the Insurance Company can say who can and who cannot work for the Caldwell Furniture Company? I cannot see what they have to do with it." The defendant's counsel privately requested the judge to tell the jury in his charge "not to consider the Insurance Company." The request was overlooked. Counsel for the defendant was present when the charge was given and did not except, but entered an exception at the time of settling the case on appeal. Exception 27-A.

The defendant argued that the evidence excepted to was an indirect method of informing the jury that the defendant had insurance which, in case of the plaintiff's recovery, would indemnify it against loss. This court has been insistent in its disapproval of any attempt by the plaintiff, in an action for personal injury or death, to prove that the defendant had insurance protecting it from the consequences of its own negligence. In Lytton v. Manufacturing Company, 157 N.C. 331, 72 S.E. 1055, Ann. Cas. 1913C, 358, evidence that the defendant in an action for damages arising from personal injury was insured in a casualty company was held to be incompetent because it was entirely foreign to the issues raised by the pleadings--a position maintained in several subsequent decisions. Featherstone v. Cotton Mills, 159 N.C. 429, 74 S.E. 918; Starr v. Oil Co., 165 N.C. 587, 81 S.E. 776; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726. In these cases the evidence was offered by the plaintiff. The Annotation in 56 A. L. R. 1418, contains an exhaustive review of the cases in this subject. On page 1432 it is said: "The general rules and principles applicable to the question of the admissibility of evidence, in a negligence action, of the fact that the defendant therein carries liability or indemnity insurance protecting him from the consequences of negligence, are settled beyond dispute, but, like most other rules of evidence, they are subject to qualifications and exceptions." The principle relating to the qualification of the rule is stated by Hoke, J., in Bryant v. Furniture Co., 186 N.C. 441, 119 S.E. 823, 825, as follows: "It has been held in this state that in a trial of this kind the fact that a defendant company charged with negligent injury held a policy of indemnity insurance against such a liability is ordinarily not competent, and, when received as an independent circumstance relevant to the issues, it may be held for prejudicial error. And, if brought out in the hearing of the jury by general questions asked in bad faith and for the purpose of evasion, it may likewise be held for error. On the contrary, if an attorney has reason to believe that a juror, tendered or on the panel, has pecuniary or business connection naturally enlisting his interest in behalf of such a company, it is both the right and duty of the attorney in the protection of his client's rights to bring out the facts as the basis for a proper challenge, or, if in the course of the trial it reasonably appears that a witness has such an interest that it would legally affect the value of his testimony, this may be properly developed, and where such a fact is brought out merely as an incident, on cross-examination or otherwise, it will not always or necessarily constitute reversible error when it appears from a full consideration of the pertinent facts that no prejudicial effect has been wrought."

The application of the modification is given in Davis v. Shipbuilding Co., 180 N.C. 74, 104 S.E. 82, in which it was held, upon the defendant's denial of the plaintiff's employment, that the fact that the defendant held indemnity insurance for injury to its employees was competent as tending to show that the plaintiff was in its service.

In the case at bar the evidence excepted to (exception 7) was evoked by the defendant. If a witness gives an answer which is not responsive to a question, the proper course is a motion to strike out the answer or to instruct the jury to disregard it. Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340; Godfrey v. Power Co., 190 N.C. 24, 31, 128 S.E. 485. This motion was made. But the plaintiff's answer was a direct response to the defendant's question, ""Why did you quit?" If the answer had been confined to the words, "They ran me off," the plaintiff's testimony would have been subject to grave impeachment. It would have worked serious, if not irreparable, injustice to him to exclude the reason given by the defendant for turning him off. He was entitled to an opportunity to counteract the damaging effect of the question, which was manifestly intended to weaken his testimony, by reciting in its entirety the reason given by the defendant.

On the same principle the tenth exception must be overruled. It was said in State v. Bethea, 186 N.C. 22, 118 S.E. 800 that, when the credibility of a witness is impugned by cross-examination tending to impeach his veracity or his relation to the cause, it is permissible to corroborate his credibility and to restore confidence in his veracity. Such corroborating evidence may include previous statements whether made pending the controversy or ante litem motam. Dellinger v. Building Co., 187 N.C. 845, 123 S.E. 78. The object of the cross-examination was to impair or discredit the plaintiff's version of the injury; and in corroboration of what he had said it was legitimate to prove by Joe Whisnant that the defendant's superintendent told him the...