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Gillespie v. Draughn

Filed: November 3, 1981.

HAROLD LLOYD GILLESPIE, JR.
v.
PAMELA SHULL DRAUGHN AND BOBBY J. SHULL; HAROLD LLOYD GILLESPIE, SR. V. PAMELA SHULL DRAUGHN AND BOBBY J. SHULL



Appeal by plaintiffs from Kivett, Judge. Judgment entered 8October 1980 in Superior Court, Surry County. Heard in the Court of Appeals 16 September 1981.

Clark, Judge. Chief Judge Morris and Judge Wells concur.

Clark

Plaintiffs' first assignment of error asserts that the trial court erred in allowing defense counsel to cross-examine plaintiff Gillespie, Jr., concerning his deposition taken in another pending, unrelated case. Plaintiff Gillespie, Jr. was involved in a second automobile accident, while driving the same Ford van as in the case sub judice, about two years after the accident in 1976. Plaintiff was represented by the same counsel in both matters, and counsel was present when the deposition was taken. Although plaintiff argued that the deposition had been sealed, to be opened by the presiding judge, there is no evidence in the record to support this contention. Therefore, we agree with the trial court that the sworn deposition was a matter of public record, having been filed with the Clerk of Court in a pending lawsuit. Rule 32(a)(3) of the Rules of Civil Procedure provides that at trial any part or all of a deposition, if admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or had notice of the taking. NYTCO Leasing v. Southeastern Motels, 40 N.C. App. 120, 252 S.E.2d 826 (1979).

Defense counsel cross-examined plaintiff Gillespie, Jr., by using statements made in the deposition that prior to the second accident, he had had no problems with his head, chest, right knee, or back. Defense counsel also questioned plaintiff concerning his statements that the same van was worth $4,500.00 prior to the second accident. For impeachment purposes, a witness may be cross-examined concerning statements made on other occasions which are inconsistent with testimony at the present trial. 1 Stansbury's N.C. Evidence § 46 (Brandis rev. 1973). The materiality and extent of cross-examination are matters largely within the discretion of the trial judge. For purposes of impeachment, prior inconsistent statements are always admissible. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. McKeithan, 293 N.C. 722, 239 S.E.2d 254 (1977). Here, it is obvious that the deposition was used to impeach the plaintiff. His statements concerning his

lack of prior medical problems contradicted plaintiff's testimony in court as to the extent of his injuries sustained as a result of the collision with defendant Draughn. Similarly, the plaintiff's estimation in the deposition of the fair market value of the van tended to impeach his testimony, since he valued the same van at $4,500.00 before both accidents. Therefore, we find no abuse of discretion in the ruling of the trial judge to allow this form of impeachment by using plaintiff's prior inconsistent statements.

Plaintiffs argue that the trial court erred by failing to instruct the jury that this evidence was to be considered for impeachment purposes only and not as substantive evidence. Evidence which is inadmissible for one purpose may be admissible for other proper purposes. If evidence is admitted generally, the party against whom it is offered is entitled, upon request, to have the jury instructed to consider it only for the purposes for which it is competent. State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976); 1 Stansbury's N.C. Evidence § 46 (Brandis rev. 1973). Although there was a motion to strike all the testimony concerning the 1978 deposition, the record discloses no request by plaintiffs for a limiting instruction. Therefore, since plaintiffs' counsel did not request such an instruction, the trial court did not err in its failure to restrict the purpose of the cross-examination for impeachment only. We find this assignment of error without merit.

Plaintiffs next argue, based upon their second assignment of error, that the trial court erred in allowing defense counsel to read to the jury the pleadings in the case which were not introduced into evidence at the trial. In his closing argument, defense counsel read from the plaintiffs' complaint to the jury. Prior to the adoption of the Rules of Civil Procedure, the practice of reading pleadings to the jury at the beginning of the trial in civil cases was widely followed. Although the Rules were designed to discourage reading pleadings to the jury, it is still within the judge's discretion to allow such practice. It also is not necessary that the pleadings be introduced into evidence before being read to the jury, since they are an integral part of the case itself. The trial judge has large discretion in controlling and directing the argument of counsel as long as it is confined within proper bounds and is addressed to the material facts of the case. G.S. 84-14; Kennedy v. Tarlton, 12 N.C. App. 397, 183 S.E.2d 276 (1971). We hold that the court did not commit prejudicial error by

allowing defense counsel to read portions of the final pleadings in his argument to the jury.

In their final assignment of error, plaintiffs argue that the trial court erred in his charge to the jury in that he failed to charge the jury on loss of use of the Ford van, as requested by counsel for plaintiffs. In Roberts v. Freight Carriers, 273 N.C. 600, 160 S.E.2d 712 (1968), the Supreme Court set forth the rule for damages for the loss of use of a vehicle:

"When a plaintiff's vehicle is damaged by the negligence of a defendant, the plaintiff is entitled to recover the difference between the fair market value of the vehicle before and after the damage. Evidence of the cost of repairs or estimates thereof are competent to aid the jury in determining that difference. [Citations omitted.] When a vehicle is negligently damaged, if it can be economically repaired, the plaintiff will also be entitled to recover such special damages as he has ...


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