Love v. Pressley

Decision Date07 December 1977
Docket NumberNo. 7626DC1005,7626DC1005
Citation34 N.C.App. 503,239 S.E.2d 574
CourtNorth Carolina Court of Appeals
PartiesAda G. LOVE and Jeffrey L. Love v. Robert Harvey PRESSLEY.

Theodore Fillette and Donald S. Gillespie, Jr., Charlotte, for plaintiffs.

Walker & Walker by Frank H. Walker, Charlotte, for defendant.

BROCK, Chief Judge.

Defendant brings forth some 36 assignments of error in "scatter bomb" fashion. For organizational purposes, those of his arguments which we feel merit discussion will be loosely grouped in subdivisions of this opinion.

I

Defendant's first assignment of error is to the denial of his pretrial motion for the case to be heard before another judge. Defendant argues that as evidenced by an order entered by Judge Hicks in another case involving defendant and relating to practices similar to the conduct at issue in the instant case, Judge Hicks had preconceived opinions and was biased against the defendant. Defendant's argument is without merit. Although only a two-page excerpt from the order in the prior case is included in the record on appeal in this case, its contents, which defendant refers to as "statements", are in reality findings of fact, which are part of a written ruling based upon evidence received by Judge Hicks sitting without a jury in the prior proceeding.

Defendant correctly states the law in this state that litigants are entitled to a fair trial before an unbiased judge. Ponder v. Davis, 233 N.C. 699, 65 S.E.2d 356 (1951). Ponder involved a contested election for sheriff in which one of the litigants moved that the judge recuse himself due to his having actively supported and campaigned for the adverse party in the contested election. That type of personal interest in the outcome of litigation was considered by the Supreme Court to be sufficient grounds for recusation. No such personal interest or bias on the part of Judge Hicks appears from the record. This Court has held that the fact that a trial judge has repeatedly ruled against a party is not grounds for disqualification of that judge absent substantial evidence to support allegations of interest or prejudice. In re Custody of Cox, 24 N.C.App. 99, 210 S.E.2d 223 (1974). Cf. Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449 (1977) (judge who entered pendente lite order for child support payments had presided at earlier criminal trial of defendant for failure to provide adequate child support).

The only evidence to support defendant's motion was that Judge Hicks had made findings of fact adverse to defendant in an earlier case. There has been no showing of bias in this case which would have required recusation of Judge Hicks.

Defendant's first assignment of error is overruled.

II

The next series of assignments of error deal with the admission of certain testimony which defendant contends was irrelevant and prejudicial.

Defendant's third and sixth assignments of error relate to questions propounded by plaintiff on direct examination of the defendant and on cross-examination of defendant's employee, Melvin Soloman, which pertained to incidents involving the defendant and tenants other than the plaintiffs. Defendant argues that the evidence apparently was allowed for the purpose of impeaching the witnesses; that in at least one instance, the evidence did not appear to contradict defendant's earlier testimony; and that the evidence pertained to collateral matters and the witnesses' testimony was not properly subject to impeachment by extrinsic evidence. We disagree.

The underlying question appears to be whether any testimony relating to incidents involving other tenants of defendant could properly be elicited either as substantive evidence or for impeachment purposes. If plaintiffs could properly inquire into these matters in the first instance, they could then properly impeach defendant as an adverse witness pursuant to Rule 43(b), North Carolina Rules of Civil Procedure, and could properly impeach Mr. Soloman on cross-examination.

If such testimony is admissible for impeachment, it would arise from the following denial by the defendant:

"Q. Mr. Pressley, during December, 1974, did you or anyone acting under your control as an employee or agent clean out 3118 Cosby Place; the clothes, linen, dishes, or other personal effects of Ada Love or Jeffrey Love?

A. Not that I know of."

Subsequent to that exchange, plaintiffs' counsel was permitted to inquire over objection into defendant's and Mr. Soloman's "clean-up" of the personal possessions of tenants at three other residences in Charlotte during 1974 and 1975; plaintiffs' counsel was allowed to impeach defendant's testimony by inquiring over objection into statements made by defendant under oath in two other lawsuits involving similar circumstances; and was allowed to utilize interrogatories from one of these other lawsuits on cross-examination of Mr. Soloman.

The obvious purpose of the above questions was to impeach defendant's denial that he or his employee acting within the scope of his employment " cleaned-up" the personal possessions of the plaintiffs. As such, evidence that defendant had acted in a certain manner regarding other tenants at other times does not constitute direct evidence that he so acted regarding plaintiffs. Rather, it is circumstantial evidence affecting the credibility of defendant's denial that he cleaned out the plaintiffs, and also indicating a practice of cleaning out the personal property of tenants. However, if the doing of one act has no other relevancy than that it indicates a disposition to indulge in that kind of conduct, from which the probability of the second act is inferable, then the evidence of the first act is not admissible. Holmesly v. Hogue, 47 N.C. 391 (1855). 1 Stansbury's North Carolina Evidence, (Brandis Rev.1973), (hereinafter, Stansbury), § 91. Nevertheless, if "the doing of the first act has a logical tendency to prove some relevant fact other than mere character or disposition . . . it may be shown by competent evidence, subject of course to the general rule excluding evidence that is too remote to be of substantial probative value." Stansbury, id. Thus, evidence of defendant's conduct towards other tenants, was admissible if it tended to prove any other fact relevant to the inquiry. Furthermore, plaintiffs were not bound by defendant's testimony and could discredit him by proof of prior specific statements or other conduct which related to a matter pertinent and material to the case. 1 Stansbury, § 48.

"Testimony is relevant if it reasonably tends to establish the probability or the improbability of a fact in issue. (Citations omitted.) For this reason, the relevancy of evidence in a civil action is to be tested by the pleadings, which define the facts put in issue by the parties. (Citations omitted.)" State ex rel. Freeman v. Ponder, 234 N.C. 294, 304, 67 S.E.2d 292, 300 (1951). The facts put in issue by the pleadings in the instant case included, inter alia, whether there was an unauthorized entry by defendant or his agent or employee into the premises rented to the plaintiffs; whether there was a conversion of plaintiffs' personal property by defendant or his agent or employee; if there was indeed such an entry and conversion by Mr. Soloman, defendant's employee, whether he was acting within the scope of his employment with the defendant; and whether trespass and conversion were part of the conduct of defendant's business (see Part VI, infra ).

Plaintiff Ada Love testified that upon returning to the house at Cosby Place and discovering that the floors had been mopped and waxed and that her belongings were missing, she called Mrs. Betty Soloman, defendant's rental agent, who said that the clean-up man had been there. Thus the definition of "clean-up" was material to an explanation of the disappearance of plaintiffs' property. The questions put to defendant and Mr. Soloman, to which defendant excepts, concerning defendant's conduct and statements relating to other tenants, were material to the definition of clean-up. Defendant was asked if he had cleaned out or removed personal property belonging to other tenants. Evidence indicated that Cosby Place had been cleaned-up, and that the "clean-up man" had been there; therefore, the scope of "clean-up" on other occasions was competent as circumstantial evidence to indicate the scope of clean-up in the instant case.

Evidence relating to clean-up by defendant or Mr. Soloman on other occasions was also competent circumstantial evidence that the removal of plaintiffs' personal property by Mr. Soloman was within the scope of his employment with the defendant; thus impeachment of Mr. Soloman on cross-examination relating to his removal of personal property during clean-up of other tenants was proper.

Because of the relevance of the evidence relating to the definition of "clean-up" to the issues in this case, assignments of error numbers 3 and 6 are overruled.

III

The next series of assignments of error deal with purported errors on the part of the trial court in limiting defendant's cross-examination of plaintiff Ada Love by sustaining objections to certain questions asked during the cross-examination. The first, assignment of error number 12, concerns the right of the trial judge to sustain an objection when none has been made by counsel. There is no merit to this assignment of error. See Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912 (1960).

Defendant's thirteenth, fourteenth, fifteenth, seventeenth and nineteenth assignments of error deal with questions asked by defendant which in substance had been answered by plaintiff at some point during her testimony. The limits of cross-examination are largely within the discretion of the trial judge, State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970), and this includes the discretion to ban unduly repetitious and argumentative questioning. 1 Stansbury, § 35. Furthermore, in no instance covered by assignments...

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