Driver v. Edwards

251 N.C. 650 | N.C. | 1960

WinboRNE, C. J.:

While it is difficult to. see how the plaintiff could be prejudiced by the striking of defendant’s plea in bar, and plaintiff’s reply thereto, assignment of error No. 1, it seems clear that assignments of error 3, 4, 5, 6 and 7, taken together, present error for which a new trial should be granted. In Re Will of Yelverton, 198 N.C. 746, 153 S.E. 319; Cauley v. Ins. Co., 220 N.C. 304, 17 S.E. 2d 221; S. v. Broom, 222 N.C. 324, 22 S.E. 2d 926.

In the Yelverton case, opinion by Staoy, C. J., the Court said: “It is undoubtedly approved by our decisions that the trial court may correct a slip in the admission of isolated or single points of evidence by withdrawing such evidence at any time before verdict and instructing the jury not to consider it, * * * but this may not be done without ordering a mistrial where the inadvertence is protracted and injury would result to the appellant by such action,” citing Gattis v. Kilgo, 131 N.C. 199, 42 S.E. 584. And the Court goes on to quote this from opinion by Bkown, J., in Parrott v. R. R., 140 N.C. 546, 53 S.E. 432, “When we can see that the appellant has been really injured in such case, we will always order a new trial.” And the Court concludes in the Yelverton case, supra, by saying that “On this phase of the case, therefore, the principal question presented resolves itself into an interpretation of the record * *

And in the Cauley case, supra, Stacy, C. J., considering the same principle, declared that “The most serious exception appearing on the record is the one presented in connection with the testimony of plaintiff’s brother, who was allowed to say the payee of this $5.25 check admitted to him in the presence of the bank teller that he had made a change from “Branch Banking & Trust Company” to “First-Citizens Bank & Trust Company” without any authority. True the evidence was later stricken out and the jury was instructed not to consider it, but difficulty arises in assigning it to its proper place. Was it such a slip as could be cured by withdrawing the evidence or was it a fatal inadvertence? * * * While not altogether free from difficulty * * * a careful persual of the entire record leaves us with the impression that the ruling should be sustained” (cited cases are deleted).

Moreover, in the Broom case, supra, the Court in opinion by Devin, J., later C. J., it appears that “the evidence was improvidently and doubtless inadvertently admitted. It was in no way connected with the crime with which defendant was charged * * *

“The trial judge subsequently, realizing the evidence afforded by these exhibits was not pertinent, withdrew this evidence from the consideration of the jury, but we think this came too late. Some time had elapsed, and in the meantime twelve other witnesses had been examined. The impression made upon the minds of the jurors by these exhibits thus presented could not then be removed,” citing the cases Gattis v. Kilgo, Parrott v. R. R., and In Re Will of Yelverton, supra.

And the opinion ends with this decision: “We conclude that the evidence afforded by the exhibits was incompetent and that the error in admitting them was material and prejudicial, necessitating a new trial.”

In the light of these decisions it would seem that each case must be interpreted in respect to the particular factual situation. Here while the taking of the evidence is not protracted in point of time, it is more than an isolated or single point. The volume of evidence received is so prejudicial that it would be calculated to injure plaintiff in her case, and from the verdict rendered it most likely did influence the jury.

By the withdrawal the trial judge did the best that could be done to wipe out the harmful effect of the evidence. Nevertheless, it is of such character that the Court is constrained to hold that plaintiff is entitled to a

New trial.