Whitman v. Whitman, 258 N.C. 201

258 N.C. 201 | N.C. | 1962

Higgins, J.

On cross-examination, defense counsel asked the plaintiff whether he did not know the defendant had been convicted of drunkenness, driving without a license, violating the prohibition laws, and in 1955 “. . . of operating an automobile intoxicated.” The court sustained the plaintiff’s objection to all of the foregoing questions as to the defendant’s court record beginning in 1941. When the defense counsel asked permission to have the answers of the witness inserted in the record, the court made this ruling: “Well, I will make this statement in the presence of the jury, that it is not what he knows or doesn’t know that his brother has been convicted of heretofore, if anything. The jury is concerned with what he knew the condition of his brother was at the time he was operating the car, if he was operating it under the influence; that is what the jury is concerned with; not how many times he had been drunk before, or if he had been drunk heretofore, but whether or not on this occasion he was under the influence and whether or not this plaintiff knew that or had reason to believe he was.”

If we disregard the question whether counsel may, by cross examination, challenge the character of his client by showing violations of law at times long before the accident and in which the plaintiff had no part, nevertheless the court’s ruling was entirely proper and justified upon the ground the prior violations were immaterial. The material question, as the court pointed out, was the condition of the defendant at the time of, and within a reasonable time prior to, the accident. State v. Kelly, 227 N.C. 62, 40 S.E. 2d 454; Moore v. Ins. Co., 192 N.C. 580, 135 S.E. 456. The cases cited by the defendant are not in point. They involve situations in which a bailor may be charged with negligence if he trusts his automobile to a driver whom he knows to be incompetent and dangerous because of his propensity to drink and to operate the vehicle while intoxicated. In this case the defendant was driving his own vehicle.

The defendant assigns as error the court’s reference to insurance in the charge. The assignment covers the following instruction: “You will disabuse your mind from any consideration of the case based upon whether . . . the defendant has insurance or does not have insurance. This is no concern of any juror in any case. You will not let that prejudice your mind against the defendant ... or ... for the defendant. . . . You will try it strictly upon the facts as you find them to be from the evidence. ... He (the defendant) has 'argued to you through counsel that everyone knows about the compulsory insurance law requiring insurance before one gets on the road, . . . But the court charges you you will not let the fact that insurance was mentioned in the case affect your verdict in 'any way.”

The defendant, in the argument, had taken notice of and brought before the jury the requirement of the financial responsibility act. The court’s instruction was proper in view of the issues and evidence in the case. Hoover v. Gregory, 253 N.C. 452, 117 S.E. 2d 395; Taylor v. Green, 242 N.C. 156, 87 S.E. 2d 11.

The defendant’s counsel suggests the possibility of collusion between these parties to victimize some insurance company not a party to the action. Such an issue does not arise on this record.

The evidence of defendant’s negligence was sufficient to go to the jury. Contributory negligence does not appear as a matter of law. The jury resolved these issues. The court’s charge, considered contextually, and its rulings on evidence are free from valid obj ection.

No error.