Redevelopment Commission of High Point v. Smith

272 N.C. 250 | N.C. | 1967

Bobbitt, J.

The issue as to the amount of damages or compensation .was for determination de novo by jury trial in the superior court. G.S. 40-19; G.S. 40-20; Proctor v. Highway Commission, 230 N.C. 687, 55 S.E. 2d 479; Gallimore v. Highway Comm., 241 N.C. 350, 85 S.E. 2d 392.

Henry Shavitz, called by respondents, testified, after qualification, as an expert witness in the field of real estate appraisal. On direct examination, he testified in his opinion the fair market value of the subject property as of November 8, 1965, was $11,000.00. No reference was made to the fact he had served as one of the three commissioners. The fact he had served as commissioner had no bearing upon his competency as a witness or upon the competency of his testimony. Admittedly, respondents would not be entitled to shov^, for the purpose of buttressing the qualifications and testimony of Shavitz, that the clerk had appointed him as a commissioner. Light Co. v. Smith, 264 N.C. 581, 142 S.E. 2d 140.

After completion of Shavitz’ direct testimony, evidence was admitted with reference to the appointment and service of Shavitz as commissioner. Petitioner assigns the admission thereof as error. The validity of petitioner’s contention must be determined in the light of the circumstances under which this evidence was received.

On cross-examination, counsel for petitioner confronted Shavitz with a paper bearing three signatures, the middle signature being that of Shavitz, in which the subject property was valued at $9,100.00. When called upon to explain the discrepancy between the figure appearing on the paper and his testimony at trial, Shavitz stated in substance he was one of three signers of the paper, but that the preliminary investigation and preparation of the paper had been done somewhat hastily. The obvious purpose of this cross-examination was to impeach, not to buttress, the testimony of Shavitz. On redirect examination, over objection, it was brought out by counsel for' respondents that the paper was the report of the commissioners. Shavitz then stated in further explanation of the discrepancy that $9,100.00 was a composite figure fixed by the three persons who signed the report and did not necessarily represent his personal views. On recross-examination, the report was identified at the instance of petitioner’s counsel. Shavitz was cross-examined at length concérning 'the qualifications of Mr. Clinard and of Mr. Vaughn, the other two commissioners. Later the report'was offered in evidence by respondents and was admitted without objection. In this manner, the veil of secrecy, if any, with which counsel for petitioner sought to clothe the identity of the paper during his original cross-examination of Shavitz was removed. Whether Shavitz’ credibility as a witness at trial was impaired by the fact he had signed the paper was before the jury for consideration in the light of the actual facts.

Neither Mr. Clinard nor Mr. Vaughn was called by either party. The commissioners’ report disclosed the three commissioners, in their composite judgment, had valued the subject property at $9,100.00. This brought to the attention of the jury the views of Clinard and Vaughn. Under the circumstances, the evidence tending to show Shavitz had served as a commissioner cannot be considered of such prejudice to petitioner as to justify a new trial.

It is noted that there was ample evidence apart from the testimony of Shavitz to support the jury’s verdict.

Petitioner’s remaining assignments of error, other than formal assignments, relate to two excerpts .from the charge. These excerpts, which include certain inaccurate statements in respect of certain evidence, are taken from the portion of the charge in which the court was stating the contentions of petitioner. The failure of counsel for petitioner to call these inaccuracies to the court’s attention indicates they were not considered to have prejudicial significance. “(A)n assignment of error based on an exception to statements in the charge giving the contentions of the parties, and not called to the attention of the court at the time they are made, in order to give the court an opportunity to make a correction of any erroneous statement made therein, will not be upheld.” Rudd v. Stewart, 255 N.C. 90, 96, 120 S.E. 2d 601, 606; 4 Strong, N. C. Index, Trial § 37. Such misstatements as occur in these excerpts are not considered of such prejudicial significance as to constitute sufficient ground for the award of a new trial.

Petitioner having failed to show prejudicial error, the verdict and judgment will not- be disturbed.

No error.