Hinson v. Brown , 80 N.C. App. 661 ( 1986 )

343 S.E.2d 284 (1986)

Joan S. HINSON
v.
Doyle BROWN and Coleen B. Brown.

No. 8517SC1072.

Court of Appeals of North Carolina.

May 20, 1986.

Joseph W. Freeman, Jr., Elkin, for plaintiff-appellee.

White & Crumpler by Fred G. Crumpler, Jr., and Robin J. Stinson, Winston-Salem, for defendants-appellants.

JOHNSON, Judge.

Defendants first argue that defendant Doyle Brown made a motion to continue and the court's denial of said motion was a constructive denial of representation. "Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing the defendant has been deprived of a fair trial." State v. Ipock, 242 N.C. 119, 120-21, 86 S.E.2d 798, 800 (1955). The court denied defendants' request for a "postponement" during trial. However, we note that the court had previously granted two continuances, with consent of plaintiff's counsel, to allow defendants time to seek new counsel. In the middle of plaintiff's case in chief defendants asserted that defendant Doyle Brown was too nervous to represent himself. We think the following statement by the court to defendant Doyle Brown adequately states the court's basis for denying defendants' request for a "postponement":

The Court: Mr. Brown, you gave me an assurance in January that you were going to get a lawyer and from what you told me in Chambers today, you spent the last 3 months, for lack of a better word, chasing rabbits about this case and not doing what you were supposed to do, and taking advise from people on the telephone in Washington about whether to get a lawyer or not and have done absolutely the reverse of what you were told to do and what you should have known in the exercise of common sense was absolutely necessary for you to protect your rights in this case.

(T. p. 93). Defendant Doyle Brown's response to the court was "If you postpone it, Your Honor, I will get counsel." We find no abuse of discretion by the court. Defendant's first Assignment of Error is without merit.

Defendants next argue that the trial court abused its discretion and went beyond the scope of judicial impartiality in judicial comments concerning defendants' self-representation and defendant Doyle Brown's absence from trial. We disagree.

It is well settled that a new trial is warranted when the trial judge makes any remark in the presence of the jury that tends to prejudice the jury against the unsuccessful party. E.g., Beacon Homes Inc. v. Holt, 266 N.C. 467, 146 S.E.2d 434 (1966). However, "judges are not merely mute observers of the legal drama before them. They are the most important participants in the search for truth." Colonial Pipeline Co. v. Weaver, 310 N.C. 93, 103, 310 S.E.2d 338, 344 (1984). In Colonial, supra, the Court stated that the primary consideration to determine if there is prejudicial error is as follows:

Because the trial judge occupies an exalted station, jurors entertain great respect for his opinion and can be easily influenced by a suggestion coming from him. In such cases as this, therefore, where it must be determined whether a party's right to a fair trial has been impaired by remarks made by the trial judge, the probable effect upon the jury and not the motive of the judge is determinative.

Colonial, supra, at 103, 310 S.E.2d at 344. The burden of establishing that a trial judge's remarks were prejudicial is on the appellant. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296 (1968). Under the circumstances of the instant case we consider Judge Walker's questions asked of the jury non-prejudicial. See State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951). Judge Walker acted in defendants' best interest to assure that an impartial jury would decide the issues of the case. The jury had been exposed to an emotional outburst by defendant Doyle Brown. Judge Walker, without objection by defendants, exercised his discretion in a skillful and patient manner so as to assure that defendant's previous actions and his absence for the remainder of the trial would not divert the individual jury member's attention from the issues before them. Nothing in the record indicates that the trial court's examination of the jury was prejudicial to defendants. Accordingly, we find no error.

Defendants' final argument is that defendants' motion that the evidence offered by defendants of defective brakes, which was not pled in their answer, was improperly ruled on by the trial court as inadmissible. We disagree.

When a trial court excludes evidence it is incumbent upon the proponent to include in the record what the essential content of the excluded evidence was in order for an appellate court to determine if exclusion of that evidence was error. Currence v. Hardin, 296 N.C. 95, 249 S.E.2d 387 (1978). Rule 8(b), N.C.Rules Civ.P. requires that in a defendant's answer "[d]enials shall fairly meet the substance of the averments denied." Rule 8(c), N.C.Rules Civ.P. requires that "[i]n pleading to a preceding pleading a party shall set forth affirmatively ... any ... matter constituting an avoidance or affirmative defense."

During the pre-trial conference the trial court ruled in limine that evidence of defective brakes would not be allowed due to defendants' failure to aver such a defense in their answer. Defendants contend that (1) the doctrine of sudden emergency is not one of the twenty-one (21) enumerated defenses in Rule 8(c), N.C.Rules Civ.P., which are to be affirmatively pleaded, and (2) in the alternative, defendants should have been allowed to amend their answer to include sudden emergency as a defense.

Defendants failed to meet the requirement of Rule 8(c), N.C.Rules Civ.P. in that they failed to set forth affirmatively sudden emergency as an avoidance or affirmative defense. A motion to amend an answer is addressed to the sound discretion of the trial judge and the trial court has broad discretion in permitting or denying amendments. Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972). After reviewing the record herein we find that the trial court did not abuse its discretion. Moreover, there was no offer of proof by defendants to show the essential content of the excluded evidence. The only indication we have of the import of the excluded evidence was the trial court's statement for the record that "at the conference this morning, Mr. Brown indicated that the purpose of his defense of this lawsuit, was to show to the world that General Motors had marketed an automobile line that had an inherent dangerous defect in its braking system...." We find no error in the trial court's ruling that evidence of defective brakes was inadmissible. In conclusion, we note that from the time of withdrawal of defendants' counsel, the trial court and plaintiff's counsel afforded defendants ample opportunity to secure legal counsel.

No error.

BECTON and MARTIN, JJ., concur.