Wentz v. Unifi, Inc.

• Decision Date: 01 March 1988
• Docket Number: No. 8726SC551,8726SC551
• Citation: 365 S.E.2d 198,89 N.C.App. 33
• Parties: Joe D. WENTZ v. UNIFI, INC. and Norris Lee Blevins.
• Court: North Carolina Court of Appeals

Page 198

365 S.E.2d 198

89 N.C.App. 33

Joe D. WENTZ v. UNIFI, INC. and Norris Lee Blevins.

No. 8726SC551.

Court of Appeals of North Carolina.

March 1, 1988.

Moore & Van Allen by Randel E. Phillips and Charles E. Johnson, Charlotte, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by Edward L. Eatman, Jr. and Mark C. Kurdys, Charlotte, for defendants-appellees.

WELLS, Judge.

Plaintiff, in his first argument contends that because of the factual inconsistencies between the plaintiff's and defendants' pleadings, the trial court committed error in submitting the issue of contributory negligence to the jury. Relying on Dennis v. VonCannon, 272 N.C. 446, 158 S.E.2d 489 (1968) and Jackson v. McBride, 270 N.C. 367, 154 S.E.2d 468 (1967), plaintiff argues that acceptance of the facts which he alleges in his complaint must necessarily preclude the acceptance of facts alleged by defendants in their answers thereby negating defendants' affirmative defense of contributory negligence. We disagree.

The overriding concerns in both Dennis and VonCannon were premised upon the earlier pleading rules that any material variance between the pleadings and the proof offered at trial constituted a failure of proof. Where the complaint set forth facts indicating defendant's negligence, the facts asserted in defendant's answer to support the affirmative defense of contributory negligence were required to concur with, but not negate, the facts asserted by plaintiff. If defendant asserted facts logically irreconcilable with those in the complaint, defendant's defense of contributory negligence could not prevail and was defeated on its pleadings. This, however, is no longer the law.

North Carolina has since adopted the Rules of Civil Procedure, Chapter 1A-1 of the General Statutes (1967), which abolished the rigid and strict technical requirements of form pleading and replaced these requirements with the more liberal and flexible requirements of notice pleading. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Smith v. City of Charlotte, 79 N.C.App. 517, 339 S.E.2d 844 (1986); Note, "Specificity in Pleading Under N.C. Rule 8(a)(1)," 48 N.C.L.Rev. 636 (1970). The adoption of the notice theory of pleading indicated the legislature's intention that controversies be resolved on their merits, "... following an opportunity for discovery, rather than resolving them on technicalities of pleading." Smith, 79 N.C.App. at 528, 339 S.E.2d at 851.

In the present case, the parties' pleadings were sufficient to give notice of all theories, claims and facts sought to be proven by each party. We therefore hold that the trial court did not err in submitting the issue of contributory negligence to the jury. Plaintiff's first argument is overruled.

As the second part of his argument, plaintiff contends that even if the issue of contributory negligence were properly submitted to the jury, the evidence was insufficient to have supported a finding thereof.

While defendant bears the burden of proving contributory negligence, the defendant is entitled to have the issue submitted to the jury if all the evidence and reasonable inferences drawn therefrom and viewed in the light most favorable to defendant tend to establish or suggest contributory negligence. Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970); Coppley v. Carter, 10 N.C.App. 512, 179 S.E.2d 118 (1971). In the case before us, the evidence presented the question of whether defendant Blevins actually caused plaintiff to lose control of the car or whether plaintiff lost contol first and swerved in front of defendant. There was substantial evidence tending to show that plaintiff was negligent in not keeping a proper lookout and not keeping his car under proper control, allowing it to swerve or drift into Blevins' lane of travel. Such evidence was sufficient for the jury to have found contributory negligence. Plaintiff's argument regarding the sufficiency of the evidence to support a finding of contributory negligence is overruled.

Plaintiff next argues that the trial court erred by admitting evidence of defendant Blevins' prior good driving record. While Rule 404(b) of the N.C. Rules of Evidence prohibits admission of evidence of prior specific acts to show conformity therewith and evidence of a party's prior driving record is inadmissible in automobile cases, Rouse v. Huffman, 8 N.C.App. 307, 174 S.E.2d 68 (1970), our concern on review is whether the admission constituted prejudice. N.C.Gen.Stat. § 1A-1, Rule 61 of the Rules of Civil Procedure, Broyhill v. Coppage, 79 N.C.App. 221, 339 S.E.2d 32 (1986). Because the jury found the defendant negligent, we cannot see how the admission of defendant's good driving record could have influenced the jury's verdict to plaintiff's detriment. We therefore find no prejudicial error.

In his next argument, plaintiff contends the trial court erred by admitting Patrolman Yates' two accident reports because each contained inadmissible hearsay and speculative opinions as to the positions of the vehicles involved in the collision. We disagree.

Under N.C.Gen.Stat. § 8C, Rule 803(6) (1986) of the N.C. Rules of Evidence, "Records of Regularly Conducted Activity," highway accident reports may be admissible, as a business records exception to the hearsay rule. To be admissible such reports must be authenticated by their writer, prepared at or near the time of the act(s) reported, by or from information transmitted by a person with knowledge of the act(s), kept in the course of a regularly conducted business activity, with such being a regular practice of that business...