No. 775SC143 | N.C. Ct. App. | Mar 7, 1978
Although the record caption carries the name of Dr. Charles L. Nance, Jr., as a defendant, the court allowed a motion to dismiss as to him at the end of plaintiff’s evidence and no objection was noted nor exception taken to this action of the court.
The Record indicates that this trial was begun on 15 December 1975 and was concluded on 30 December 1975. The Record before us contains only those excerpts and portions of the evidence which plaintiff feels is pertinent to the challenged portion of the hypothetical questions and those portions of the testimony and proceedings pertinent to the character evidence. We assume, as we must, that all of the relevant testimony is before us. Defendants do not challenge this but do suggest that the 30-day period available to them after service of the Record on Appeal was totally insufficient to allow them to obtain a transcript and narrate the testimony which the reporter (according to orders obtained by appellant for extensions of time) estimated would consume not less than 2,000 pages.
Plaintiff’s first assignment of error is directed to the court’s overruling plaintiff’s objection to the hypothetical question posed to defendants’ expert witnesses. The question posed to Dr. Donald David Getz included this fact assumed to be found by the jury: “that Dr. Dorman cut the cast, opened it, visualized the wound, which had no appearance of infection.” The hypothetical questions posed to Dr. Walter F. Weis, Dr. Samuel Arthue Sue, Jr., and Dr. Charles Nance all contained an almost identical fact: “Dr. Dorman cut the cast and opened it to some extent and saw the wound, which had no appearance of infection.” Plaintiff contends that this assumed fact was not in evidence.
“Under our system the jury finds the facts and draws the inferences therefrom. The use of the hypothetical question is required if it is to have the benefit of expert opinions upon factual situations of which the experts have no personal knowledge. . . .
To be competent, a hypothetical question may include only facts which are already in evidence or those which the jury might logically infer therefrom. Jackson v. Stancil, 253 N.C. 291" court="N.C." date_filed="1960-11-09" href="https://app.midpage.ai/document/jackson-v-stancil-1329430?utm_source=webapp" opinion_id="1329430">253 N.C. 291, 116 S.E. 2d 817; Stansbury, N.C. Evidence, s. 137 (2d Ed. 1963) and cases therein cited.”
Applying the foregoing criteria for competency to the evidence furnished by plaintiff, we conclude that the court correctly overruled plaintiffs objection. Portions of the evidence, we think, are sufficient to place before the jury facts from which the jury could logically infer that the wound had no appearance of infection when the cast was split by Dr. Dorman on Friday, 2 June. Dr. Dorman was asked whether he examined the wound on 2 June. He replied that he did. He was then asked how he examined the wound. He answered: “When the cast was split, and then it was opened, I stated in the nurse’s notes, a small amount. When this happened I split the cast on the ulna side as I indicated with my hand. When I split the cast I also split the cotton that is under the cast and I would have to see the wound.” He further testified that, although he did not actually recall seeing the wound and did not split the cast for that purpose, “it would have been unavoidable that I could not have seen the wound.” Dr. Dor-man stated that he split the cast from the distal portion of the cast, which would have extended down to the junction of the small finger in the hand, along the ulna side of the cast up to above the incision; that it would have to be split above the area of the injury so that when the plaintiff’s arm was put down from its raised position it would not swell. He further testified that he did not remember exactly what happened, but if he did not see anything unusual he would not necessarily have recorded it, but if he found something unusual he would have recorded it, and “[o]n Friday, June 2nd, the wound was not opened and no culture of any type was done. There was no reason to do that. No blood
Dr. Craven testified that the wound could be seen “adequately” through the slit in the cast; that the nurse, on Saturday afternoon, reported that she had seen some blisters on his arm; that he investigated, saw the blisters where the cast had been cut, spread the cast a little wider, and the wound did not appear to be acutely inflamed or require any further treatment. Having seen the wound, he was very well reassured that it was not obviously infected.
It is clear that there was ample evidence that Dr. Dorman “cut the cast and opened it to some extent”. There was also ample evidence from which the jury could logically infer that he “saw the wound, which had no appearance of infection”. This assignment is overruled.
Plaintiff’s only other assignment of error is that “[t]he court erred in permitting approximately 30 witnesses to the good reputation of the defendants to either testify, or to be tendered to testify, or to have their names announced to the jury, the only effect of which was to prejudice the plaintiff’s case with the jury, since reputation was not in issue, the plaintiff having theretofore stipulated to the excellent reputation of each defendant.”
Here Nurse Jordan, who testified for plaintiff, testified on cross-examination without objection with respect to defendant Dorman’s reputation. Drs. Weis and Sue, expert witnesses for defendant, also testified as to reputation without objection. Drs. James and Nicholson testified, without objection, as to reputation, and defendants then tendered seven doctors who would testify to the same facts. There was no objection. Defendants then put on three more character witnesses, two of whom were nurses, without objection. Defendants then put on John Newton to testify with respect to Dr. Dorman’s reputation as an orthopedic surgeon. Plaintiff asked for a voir dire examination, but none was had. It developed that the witness was an amputee and had been for two years. Plaintiff did not object. He did, however, object to the testimony of the last two witnesses as to Dr. Dorman’s reputation as an orthopedic surgeon. The objections were over
Here both defendant Dorman and defendant Craven testified and each was cross-examined extensively by plaintiff’s counsel, obviously for the purpose of attempting to cast doubt upon the truthfulness of their testimony. “Where a party testifies, it is competent to show his general reputation as bearing on his credibility as a witness. (Citations omitted.)” Lorbacher v. Talley, 256 N.C. 258" court="N.C." date_filed="1962-01-12" href="https://app.midpage.ai/document/lorbacher-v-talley-1275000?utm_source=webapp" opinion_id="1275000">256 N.C. 258, 260, 123 S.E. 2d 477, 479 (1962), and exclusion of evidence offered for such purpose is prejudicial error. Wells v. Bissette, 266 N.C. 774" court="N.C." date_filed="1966-03-30" href="https://app.midpage.ai/document/wells-v-bissette-1157912?utm_source=webapp" opinion_id="1157912">266 N.C. 774, 147 S.E. 2d 210 (1966), and cases there cited. Particularly is this true where the credibility of his testimony is challenged. Not until the last two witnesses testified did plaintiff interpose objection.
We agree that in this case an unusually large number of witnesses was allowed to testify as to reputation. However, “[t]he number of persons that a party who testifies in a civil action, such as in the instant cases, will be permitted to call to the witness stand to testify as to his general reputation as bearing on his (the party’s) credibility as a witness, is necessarily a matter which rests in a large measure in the sound discretion of the trial judge. The rationale of such rule is to keep the scope and volume of such testimony within reasonable bounds. Gibson v. Whitton, 239 N.C. 11" court="N.C." date_filed="1953-12-16" href="https://app.midpage.ai/document/gibson-v-whitton-1283810?utm_source=webapp" opinion_id="1283810">239 N.C. 11, 17, 79 S.E. 2d 196, 201.” Wells v. Bissette, supra, 266 N.C. 774" court="N.C." date_filed="1966-03-30" href="https://app.midpage.ai/document/wells-v-bissette-1157912?utm_source=webapp" opinion_id="1157912">266 N.C. at 777, 147 S.E. 2d at 213. Perhaps this case comes very close to failing to keep the scope and volume of such testimony within reasonable bounds. However, plaintiff has failed to object in apt time. His objections to the testimony of the last two witnesses comes when the horse is out of the barn. Nor has he shown any abuse of discretion.
No error.