Redding v. Braddy , 258 N.C. 154 ( 1962 )

128 S.E.2d 147 (1962) 258 N.C. 154

James. D. REDDING
v.
George W. BRADDY.

No. 395.

Supreme Court of North Carolina.

November 21, 1962.

White & Crumpler, Leslie G. Frye and Harrell Powell, Jr., Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice and H. G. Barnhill, Jr., Winston-Salem, for defendant appellee.

BOBBITT, Justice.

Prior to February 25, 1958, plaintiff, a police officer, had been involved in a series of automobile collisions from which he received some injury, including injury to his neck and back.

The damage to the police car (Plymouth) caused by the collision of February 25, 1958, was "very slight." The chief accounting officer of Winston-Salem testified the damage "was of such a minor nature that the vehicle was not repaired."

Plaintiff testified he felt "a sharp pain in (his) neck, just back of (his) head, just at the back of (his) neck," when defendant's Pontiac struck the Plymouth; that he "immediately called the police over the radio to come and investigate this collision"; that he got out of the police car, talked with defendant and tested the gear shift and brakes on defendant's car; and that, after remaining at the scene of the collision some twenty or thirty minutes, he went to the office of Dr. Transou, a chiropractor, where he was "given an adjustment to (his) neck."

From February 25, 1958, to October 28, 1958, plaintiff was given numerous adjustments by Dr. Transou. Plaintiff testified that, during this period, he suffered pain both "in (his) neck and right arm." From October 28, 1958, until February 9, 1959, plaintiff saw no doctor.

Plaintiff saw Dr. McDowell, a bone specialist, February 9, 1959. Under treatment by Dr. McDowell, plaintiff was in the hospital from February 24, 1959, to March 5, 1959. Plaintiff was absent from work from February 25, 1959, through August 21, 1959. (Note: Prior to February 25, 1959, plaintiff had lost no time from his work.) During this period, plaintiff received his full salary of $380.00 per month. (Note: Included in this amount was $35.00 per week paid by Winston-Salem as selfinsurer under the Workmen's Compensation Act. Too, by reason of the payment of full salary, plaintiff's accumulated sick leave was reduced a half day for each of the days he was absent from work.)

While all of plaintiff's assignments of error have been considered, only those referred to below merit particular discussion.

On May 22, 1958, some three months after the collision in which defendant was involved, a police car in which plaintiff and another officer were riding had stopped at a street intersection in Winston-Salem, North Carolina, in obedience to a red traffic light. Plaintiff testified: "While I was sitting there a car driven by a man by the name of Charlie Hartman White, Jr., of Mocksville, accelerated and ran into the rear of the car I was in." Again: "In that collision the muscles in my lower back were pulled; I did not have any injury to my neck in that collision."

Under cross-examination, plaintiff testified, over objection by his counsel, that he had received $1,025.00 on April 2, 1959, in settlement of his claim for injuries caused by said collision of May 22, 1958; and defendant, over plaintiff's objection, offered in evidence the check of Allstate Insurance Company, dated April 2, 1959, in the amount of $1,025.00, payable to James D. Redding. Plaintiff assigns as error the admission of this evidence, contending the fact there was a settlement of his claim for injuries sustained in said collision of May 22, 1958, for $1,025.00, was irrelevant and prejudicial.

"The standard of admissibility based on relevancy and materiality is of necessity so elastic, and the variety of possible fact situations so nearly infinite, that an exact rule cannot be formulated. In attempting to express the standard more precisely, the Court has emphasized the necessity of a reasonable, or open and visible connection, rather than one which is remote, latent, or conjectural, between the evidence presented and the fact to be proved by it, at the same time pointing out that the evidence need not bear directly on the issue and that the inference to be drawn need not be a necessary one." Stansbury, North Carolina Evidence, § 78.

Before and after May 22, 1958, plaintiff was receiving adjustments from Dr. Transou. In February-March, 1959, in the hospital, plaintiff "was placed in traction, with a head harness, with a bar running across the top of (his) head * * *." Plaintiff testified that while "wearing the traction it gave (him) some relief, and (his) neck and shoulders seemed to get a lot better," and "the grip in (his) hand started to coming back to some degree." Dr. McDowell, witness for plaintiff, testified that when he first examined plaintiff on February 9, 1959, plaintiff "was complaining of pain in his neck entirely, not in his lower back, even though he was still wearing a back support to his lower back." Again: "My examination was confined entirely to his complaint, which was his neck." Dr. McDowell referred to the treatment given plaintiff in the hospital as "cervical traction." Dr. McDowell testified plaintiff told him about the collision in May, 1958, but "did not at any time say anything specifically about an accident involving the automobile driven by Mr. Braddy, on February 25, 1958."

While the precise amount of the settlement was not of particular significance, it may be inferred from the fact he received a substantial amount in settlement that plaintiff was then asserting he received substantial injury from said collision of May 22, 1958. Moreover, as indicated, Dr. Mc-Dowell's testimony was to the effect that he was treating plaintiff primarily for injuries to his neck, not for injuries to plaintiff's back, and that plaintiff did not advise him of any collision in which he was involved in 1958 except the collision of May 22, 1958. Under the circumstances, we think the testimony concerning plaintiff's settlement of April 2, 1959, was relevant and material as bearing upon the credibility of plaintiff's testimony to the effect the only injuries he sustained May 22, 1958, were back injuries.

Evidence was elicited, first by plaintiff's counsel and thereafter by counsel for plaintiff and counsel for defendant, with reference to the amount paid by Winston-Salem, a self-insurer under the Workmen's Compensation Act, to plaintiff, its employee, as (workmen's) compensation and for medical bills, a total of $1,265.30. As provided by G.S. § 97-10.2(e), this evidence was inadmissible. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362. Ordinarily, the admission of such evidence, over objection, would be error. However, no objection was interposed either by plaintiff or by defendant.

Plaintiff does not assign as error the admission of the evidence relating to payments made under the Workmen's Compensation Act. He assigns as error portions of the charge in which the court refers to this evidence. The gist of the court's instructions was that plaintiff, if entitled to recover from defendant, was entitled to recover all damages ordinarily recoverable in a personal injury action but that the amount recovered, up to $1,265.30, would be used to reimburse Winston-Salem for the payments it had made under the Workmen's Compensation Act. Lovette v. Lloyd, 236 N.C. 663, 668, 73 S.E.2d 886, and cases cited. Thus, the jury was advised, in effect, that plaintiff could not benefit personally from the verdict unless the amount thereof exceeded $1,265.30.

In instructing the jury, the court was confronted by the fact that the evidence concerning the payments made by Winston-Salem under the Workmen's Compensation Act had been admitted and was before the jury. Whether counsel for plaintiff or defendant had based arguments to the jury on such evidence does not appear. We cannot say that the court should have ignored the fact that this evidence had been admitted and was before the jury. Under the circumstances, we do not perceive that the instructions were prejudicial to plaintiff.

Plaintiff's other assignments do not disclose prejudicial error and discussion thereof is deemed unnecessary.

No error.