Medford v. Davis, 8230SC385

Decision Date17 May 1983
Docket NumberNo. 8230SC385,8230SC385
CourtNorth Carolina Court of Appeals
PartiesJewel MEDFORD, Guardian ad Litem for Sherri Renae Heatherly, Plaintiff, v. Wendell Alan DAVIS, Edna Hollingsworth Davis and Hazel C. Hollingsworth.

Russell L. McLean, III, Waynesville, for plaintiff-appellant.

Roberts, Cogburn, McClure & Williams by Max O. Cogburn and Issac N. Northup, Jr., and Van Winkle, Buck, Wall, Starnes & Davis by O.E. Starnes, Jr., Asheville, for defendants-appellees.

WEBB, Judge.

In her first argument, plaintiff contends the trial judge committed reversible error when he entered the jury room and gave the jurors further instructions in the absence of the parties and their attorneys. From the record, it appears that after the jurors had retired and deliberated for over an hour, the judge was informed that they had some questions. There were people in the courtroom who had gathered for a public meeting and the parties and their counsel agreed to allow the judge, reporter, and bailiff to enter the jury room for the questions. Additional instructions were thereafter given by the judge in the jury room. Plaintiff does not contend that these instructions were erroneous or prejudicial. Rather, she urges this Court to adopt a per se rule which would require a new trial whenever a judge communicates with the jury in the jury room in the absence of counsel and the parties, regardless of whether prejudice has been shown.

Our research has disclosed no North Carolina cases on point, and there is no North Carolina rule of civil procedure or practice which directly addresses this issue. On the facts presented here, we do not believe we should hold there was prejudicial error. The trial judge's conduct was expressly consented to by the parties and their counsel before he went into the jury room. The consent of plaintiff and her counsel either caused or joined in causing any error committed by the court, and "[i]nvited error is not ground for a new trial." State v. Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971); see Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349 (1963).

Next, plaintiff argues that defense witness Dan Medford should not have been allowed to testify about the manner in which Davis operated the vehicle. When he was asked "How was Alan [Davis] driving?", Medford responded, "Normal, to me, it was fine." At this point, plaintiff's counsel objected "as to what is normal." The objection was overruled, and Medford testified, "It was a reasonable speed." Plaintiff's motion to strike this testimony was denied.

At the outset, we note that plaintiff's objection may have been untimely since it was not made until after Medford had already answered the question calling for a description of Davis's driving. Brown v. Neal, 283 N.C. 604, 197 S.E.2d 505 (1973). Assuming, arguendo, that the objection was taken in apt time, we hold Medford's testimony concerning the operation of the vehicle to be admissible. A witness is permitted to give opinion evidence in the form of a "shorthand statement of the facts" when it is impractical to describe the facts in detail. State v. Brown, 26 N.C.App. 314, 215 S.E.2d 802 (1975); see 1 Brandis on N.C.Evidence § 125 (1982). Contrary to plaintiff's contention, Medford's testimony as to how defendant was driving did not invade the province of the jury since it was not an opinion on the ultimate issue to be decided by the jury. The ultimate issue was whether defendant was negligent at the...

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10 cases
  • Lawing v. Lawing, 8526DC993
    • United States
    • North Carolina Court of Appeals
    • June 3, 1986
    ...that the trial court committed error, but that the aggrieved party was prejudiced as a result. G.S. 1A-1, R.Civ.P. 61; Medford v. Davis, 62 N.C.App. 308, 302 S.E.2d 838, disc. rev. denied, 309 N.C. 461, 307 S.E.2d 365 The General Assembly has committed the distribution of marital property t......
  • MacLagan v. Klein
    • United States
    • North Carolina Court of Appeals
    • August 20, 1996
    ...Ms. Browder's testimony about plaintiff's statements at the 2 June 1993 conference was harmless. See, e.g., Medford v. Davis, 62 N.C.App. 308, 311, 302 S.E.2d 838, 840, disc. review denied, 309 N.C. 461, 307 S.E.2d 365 (1983) ("Error in the exclusion of evidence is harmless when other evide......
  • Loeb v. Loeb
    • United States
    • North Carolina Court of Appeals
    • January 2, 1985
    ...Without the exhibits before us, we are unable to determine whether the wife has been prejudiced by their admission. Medford v. Davis, 62 N.C.App. 308, 302 S.E.2d 838, disc. rev. denied, 309 N.C. 461, 307 S.E.2d 365 (1983); Hasty v. Turner, 53 N.C.App. 746, 281 S.E.2d 728 (1981). We emphasiz......
  • Faucette v. 6303 Carmel Road, LLC
    • United States
    • North Carolina Court of Appeals
    • July 21, 2015
    ...that there was a reasonable possibility that, but for the error, the outcome would have been different. Medford v. Davis, 62 N.C.App. 308, 311, 302 S.E.2d 838, 840 (1983) ; see also Burgess v. C.G. Tate Const. Co., 264 N.C. 82, 83, 140 S.E.2d 766, 767 (1965) ("The burden is on appellant to ......
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