McClamroch v. Colonial Ice Co.
| Decision Date | 02 February 1940 |
| Docket Number | 681. |
| Citation | 6 S.E.2d 850,217 N.C. 106 |
| Parties | McCLAMROCH v. COLONIAL ICE CO. et al. |
| Court | North Carolina Supreme Court |
Civil action for recovery of damages for alleged wrongful death. C.S. § 160.
Plaintiff alleges and offers evidence tending to show that the testator, J. R. McClamroch, died December 16, 1935, as result of injuries received on February 20, 1934, and proximately caused by the negligent operation of truck of defendant Colonial Ice Company while being driven by its servant Roscoe Garner, along Elm Street in the city of Greensboro North Carolina, by reason of which the plaintiff has been greatly damaged.
Defendant denies the material allegations of plaintiff and pleads the contributory negligence of the testator, J. R. McClamroch, in bar of recovery and offers evidence upon issues joined.
When the case was called for trial plaintiff submitted to judgment as of nonsuit as to defendant John Bidding, for that he was an improper party.
Upon the issues submitted the jury returned the following verdict:
The court entered judgment thereon for the plaintiff, from which plaintiff appeals and assigns error.
Frazier & Frazier, of Greensboro, for plaintiff-appellant.
Sapp & Sapp, of Greensboro, for defendant-appellee.
A careful consideration of plaintiff's exceptive assignments fails to reveal reversible error. They are presented in four groups, and will be so considered in this opinion.
I. The court permitted defendant, over objection by plaintiff, to introduce in evidence: (a) Death certificate showing death of plaintiff's testator, J. R. McClamroch. Plaintiff contends that, upon two grounds, the admission of this certificate is prejudicial error: (1) Lack of proof of its authenticity for that same is not certified in accordance with the method prescribed in C.S. § 7111. As to this, the record discloses that after objection upon the ground that the certificate is not authenticated and that it is "incompetent, irrelevant and immaterial", counsel for plaintiff qualified the objection by saying: "We don't deny that it is a record in the clerk's office but we deny its materiality and the competency". Whereupon, "with the qualification stated by plaintiff's counsel" the objection is overruled. Therefore it appears that the objection is limited to materiality and competency, and not to the method of proof of the instrument itself. However, the contents of a public record may be proven in any court by the original record itself. Blalock v. Whisnant, 216 N.C. 417, 5 S.E.2d 130, citing cases. (2) That the admission of the certificate is prejudicial for that there being no answer to the question: "If death was due to external causes (violence), fill in also the following", defendant could argue, and argued, that if the death of testator had been caused by accident the doctor would have said so. The verdict of the jury, however, negatives any prejudicial effect of the lack of answer to the question. Hence, if there were error in admitting the certificate in evidence, no harm has resulted to plaintiff. Cochran v. Young-Hartsell Mills Co., 169 N.C. 57, 85 S.W. 149. (b) Letter from Jas. McClamroch, who is a lawyer, and son of the testator and brother of the plaintiff executor, to the clerk of Superior Court of Guilford County, conveying information that: "There are no assets in the estate and that the sole purpose in instituting the administration was to bring suit for wrongful death", and that, hence, "there are no inventories, accounts, or other reports to be filed." Plaintiff contends that this letter, not having been written by the plaintiff, is incompetent. He relies upon the decision in Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400. The factual situation there, however, is distinguishable from that here. It is noted that here the letter purports to have been written in response to a card from the clerk to the plaintiff, J. W. McClamroch, calling for annual report on this estate. Further examination of the record discloses that the writer of this letter, as a witness for plaintiff, testified, that from his knowledge and familiarity with the business and the records of the business of his father, of which the father was sole proprietor, he knew of the large earnings of his father over a long period of years. Then, in the course of cross examination with respect thereto, the witness identified the letter in question, and, without objection by plaintiff, the same was read into the record as a part of the testimony of the witness.
Later, when defendant came to offer evidence, plaintiff then objected to the admission of the letter in evidence. The record also discloses that later in the trial and without objection a report of the plaintiff as executor of the estate of the testator, giving similar information to that contained in the letter, was introduced in evidence at the instance of defendant.
In the light of the record, the admission of the letter is harmless. The general rule, as established in long line of decisions in this jurisdiction, is that evidence is harmless when similar evidence is admitted without objection. Smith v. Atlantic Coast Line R. Co., 163 N.C. 143, 79 S.E. 433; Shelton v. Southern R. Co., 193 N.C. 670, 139 S.E. 232; Colvard v. Nantahala Power & Light Co., 204 N.C. 97, 167 S.E. 472; Owens v. Blackwood Lbr. Co., 212 N.C. 133, 193 S.E. 219; State v. Bright, 215 N.C. 537, 2 S.E.2d 541, and numerous other cases.
Hence, we deem it unnecessary to debate the question of competency and relevancy of the letter.
II. The next assignment relates to an exception taken after trial with respect to an incident occurring during the charge, and to a portion of the charge immediately following.
It appears from the record that the court referred to the executor J. W. McClamroch as a witness, when in fact it was Jas. G. W. McClamroch who had testified. Then the incident occurred in detail as follows:
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