Shuford ex rel. Shuford v. McIntosh , 104 N.C. App. 201 ( 1991 )

PHILLIPS, Judge.

In seeking a new trial, plaintiff cites five actions by the court as prejudicially erroneous. The first action complained of, allowing each defendant more peremptory jury challenges than the statutes authorize, was clearly erroneous, but such action has heretofore been held to be harmless error by our Supreme Court.

G.S. 9-19 allows each side in a civil action eight peremptory challenges, and the only authority for exceeding that allowance is the following provision in G.S. 9-20:

When there are two or more defendants in a civil action, the presiding judge, if it appears that there are antagonistic interests between the defendants, may in his discretion apportion among the defendants the challenges now allowed by law, or he may increase the number of challenges to not exceeding six for each defendant or class of defendants representing the same interest. In either event, the same number of challenges shall be allowed each defendant or class of defendants representing the same interest. The decision of the judge as to the nature of the interests and number of challenges shall be final. (Emphasis added).

In this case the trial judge, after finding that the defendants had antagonistic interests, allowed each defendant eight peremptory-challenges. Dr. McIntosh exercised all eight of the challenges allowed him, the hospital used only five, and plaintiff only seven.

Though defendants argue otherwise, the court had no authority to allow each defendant eight peremptory challenges. The language of G.S. 9-20 is susceptible of no other interpretation. Having found that the interests of the defendants were antagonistic, G.S. 9-20 authorized the trial judge in his discretion to either apportion between them the eight peremptory challenges allotted to the defendants or to increase the peremptory challenges of each defendant up to a maximum of six; it did not authorize the judge to allot either defendant more than six peremptory challenges.

In contending that allowing the defendants more peremptories than the statute allows was prejudicial as a matter of law, plaintiff mainly relies upon the statement in State ex rel. Freeman v. Ponder, 234 N.C. 294, 302, 67 S.E.2d 292, 298 (1951), that “a litigant cannot exercise any more peremptory challenges than the number allowed to him by law,” but that case did not involve the allowance of more peremptory challenges than then G.S. 9-22 authorized; and the holding in State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975), that an alternate juror being in the jury room after deliberations began in violation of G.S. 9-18 was reversible error per se. These decisions cannot be applied to this case which involves allowing more peremptory challenges than the applicable statute authorized, because our Supreme Court has held that such allowances are not reversible error per se. In State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 50 L.Ed.2d 301 (1976), the Court held that allowing the State one more peremptory challenge in a capital case than G.S. 9-21 authorized was not prejudicial error. In State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975), modified, 428 U.S. 903, 49 L.Ed.2d 1208 (1976), the Court ruled to the same effect though two capital crimes were charged and the trial court mistakenly allowed both sides many more peremptories than the statute authorized.

Plaintiff’s arguments to the contrary are not without appeal. There is good ground for maintaining, as he argues, that allowing one side in a case more peremptory challenges than the statute authorizes taints the fair jury trial process that our system of jurisprudence is based upon, and that a violation of the statute was intended by the Legislature to be prejudicial since showing prejudice in such situations is all but impossible and the statute will become a dead letter if not enforced. But the decisions cited require us to hold otherwise.

The other actions of the trial court that plaintiff complains of were either not erroneous or were without prejudicial effect. The refusal to receive into evidence two medical pamphlets — “Standards for Ambulatory Obstetric Care” published by the American College of Obstetricians and Gynecologists, and “Rules and Statutes Applying to the Licensing of Hospitals in North Carolina” published by the North Carolina Department of Human Resources — was not error because no foundation was laid for establishing either the relevancy or reliability of these pamphlets, which on their face appear to be recommendations, rather than standards applicable to either of the defendants. And as plaintiff concedes in his brief, he “was later able to introduce such evidence via other witnesses;”

Permitting defendants to cross-examine plaintiff’s witnesses as to educational and other public benefits and services available to the child did not violate the collateral source rule and was not error because the cross-examination was in response to testimony offered by plaintiff that such facilities and services were not available in that area. The other cross-examination allowed of plaintiff’s medical witness, which plaintiff complains of, was also within reasonable limits and the court’s discretion. And the denial of plaintiff’s motion for a new trial pursuant to Rule 59, N.C. Rules of Civil Procedure was within the court’s discretionary authority and no abuse is indicated.

No error.

Judges Arnold and Wells concur.