Sparks v. Holland
| Decision Date | 18 March 1936 |
| Docket Number | 245. |
| Citation | 184 S.E. 552,209 N.C. 705 |
| Parties | SPARKS v. HOLLAND. PARDUE v. SAME. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wilkes County; F. Donald Phillips Judge.
Consolidated actions by S. A. Sparks and by J. W. Pardue against C. H Holland. Judgments for plaintiffs, and defendant appeals.
No error.
These are civil actions consolidated, by consent, for the purpose of trial, wherein it is alleged by the respective plaintiffs that they were gratuitous guests in an automobile owned and driven by the defendant, and that they were injured when said automobile collided with another automobile driven by one Sherman Anderson. It is further alleged that at the time of the collision the defendant was unlawfully and negligently driving his automobile on his left side of the road, and that the injury to the plaintiffs was proximately caused by such negligence. The allegations of negligence were denied by the defendant. Evidence tending to establish the contentions of both parties was offered. The jury found that the plaintiffs had been injured by the negligence of the defendant as alleged in the complaint, and assessed damages.
From judgments based upon the verdict, the defendant appealed to the Supreme Court, assigning errors.
Charge predicating recovery on finding that plaintiff was injured by defendant's negligence held not erroneous for failure to make reference to proximate cause, when read in connection with portion of immediately preceding charge requiring that it appear that negligent breach of duty was proximate cause of injury.
T. E Bingham and Trivette & Holshouser, all of Boone, for appellant.
J. M Brown, of North Wilkesboro, and Bowie & Bowie, of Jefferson, for appellees.
We will consider the several assignments of error brought forward in the appellant's brief in the order in which they are there presented. The other assignments in the record which are not mentioned in the brief are deemed to be waived. Rule No. 28 of Rules of Practice in the Supreme Court, 200 N.C. 811, 831.
The first assignment of error is to the court's permitting counsel for the plaintiff to inquire of the jurors being selected if they had any business connection with the American Casualty Company. The following appears in the record: "The Court, not in the presence of the jury, and at the insistence and request of the plaintiffs' counsel, inquired of the defendant's counsel if the defendant was insured by the American Casualty Company, whereupon the defendant's counsel declined to answer, and plaintiffs' counsel stated to the Court in the presence of the defendant's counsel that the plaintiffs' counsel had been in several conferences with the defendant's counsel and a representative of the American Casualty Company with reference to the suit, which statement was not denied by the defendant's counsel; whereupon the Court found as a fact that the plaintiffs' inquiry was in good faith and permitted the plaintiffs' counsel in the exercise of the discretion of the Court to question the jury as to whether any of the jurors had an interest as agent or otherwise in the American Casualty Company, which finding of fact and inquiry addressed to the defendant's counsel were not made in the hearing of the jury."
The court having found as a fact that the plaintiffs' inquiry was in good faith and having permitted the questions as to whether the jurors being selected had any interest as agent or otherwise in the American Casualty Company, in its sound discretion this assignment of error is untenable. Walters v. Durham Lumber Co., 165 N.C. 388, 81 S.E. 453, and cases there cited. "As to whether the question [relative to any connection the prospective jurors might have to an indemnity company] is asked in good faith, or as to whether the adverse party has been prejudiced by the inquiry addressed to the jurors, before the jury is impaneled, must be left to the trial judge to determine in his discretion." Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9, 11.
The third assignment of error is to the court's permitting the plaintiff Pardue to testify...
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