{
  "id": 11311465,
  "name": "ALTON B. CRAVER, JR. v. NATIONWIDE MUTUAL INSURANCE COMPANY",
  "name_abbreviation": "Craver v. Nationwide Mutual Insurance",
  "decision_date": "1974-08-07",
  "docket_number": "No. 7426DC516",
  "first_page": "660",
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  "last_updated": "2023-07-14T16:09:41.671000+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Vaughn concur."
    ],
    "parties": [
      "ALTON B. CRAVER, JR. v. NATIONWIDE MUTUAL INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "BALEY, Judge.\nThe only witness for defendant at the trial was Dr. J. J. Priester. While cross-examining Dr. Priester, counsel for plaintiff asked him certain questions concerning the pain resulting from a ruptured disc and the time when such pain would first be felt. The court sustained defendant\u2019s objections to two of these questions, and two of plaintiff\u2019s assignments of error are based on these rulings. However, plaintiff has not placed in the record the answers that Dr. Priester would have given to these questions. It is therefore impossible to determine whether the trial court committed prejudicial error in excluding the two questions, and accordingly these assignments of error may not be considered by this Court. Electro Lift v. Equipment Co., 270 N.C. 433, 154 S.E. 2d 465; Construction Co. v. Hamlett, 14 N.C. App. 57, 187 S.E. 2d 438, cert. denied, 281 N.C. 621, 191 S.E. 2d 758; Sanders v. Anchor Co., 12 N.C. App. 362, 183 S.E. 2d 312.\nDefendant introduced into evidence a document entitled \u201cApplication for Health Insurance,\u201d signed by plaintiff and dated 17 October 1969. In answer to one of the questions in this application, defendant stated that he had never had any \u201cbone, joint or back disorder.\u201d Defendant\u2019s reason for introducing this document was to cast doubt upon plaintiff\u2019s credibility, since plaintiff had previously testified that he suffered a ruptured disc on 12 July 1969. Plaintiff contends that this \u201cApplication\u201d was an amendment to an earlier insurance application, designed to correct his mistake in inadvertently specifying $35 rather than $50 on the earlier application as the amount of daily room and board benefits he desired to receive in the event of hospitalization, tie asserts that under the \u201cbest evidence rule,\u201d the court could not admit this document into evidence without also admitting the earlier application. This assignment of. error is based on a misunderstanding of the best evidence rule. The best evidence rule does not require that when \u00e1 document which is an amendment of an earlier document is admitted into evidence, the earlier document must be admitted at the same time as the amendment. It provides instead that when a party seeks to prove the contents or terms of a writing, he must introduce the original writing into evidence, rather than using a copy or oral evidence as to the terms of the writing. 2 Stansbury, N. C. Evidence (Brandis rev.), \u00a7 190; State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768; Aviation, Inc. v. Insurance Co., 19 N.C. App. 557, 199 S.E. 2d 485. Defendant does not contend that .the trial court erred in failing to require defendant to introduce the original, rather than a copy, of the \u201cApplication for Health Insurance.\u201d This assignment of error, therefore, is untenable.\nBefore the trial judge gave his charge to the jury, the attorneys for both parties conferred with him at the bench. Counsel for defendant submitted a requested instruction explaining what circumstances would, and what circumstances would not, constitute an \u201caccident\u201d within the meaning of plaintiff\u2019s insurance policy. This requested instruction was not acceptable to plaintiff, and the attorneys discussed possible revisions in the wording of the instruction. They finally reached agre\u00e9ment on a charge on this subject, and the revised instruction was submitted to the court, with both attorneys stating that it was satisfactory to them as revised. The judge included the revised instruction verbatim in his charge to the jury. Plaintiff now contends that this instruction was erroneous. Such a' contention cannot be accepted by this Court. An attorney should not be allowed to participate in the drafting of an instruction, state to the court that it is acceptable to him, and then argue on appeal that the instruction which he helped to draft was erroneous. When the attorneys submitted the agreed instruction to the court, in effect they jointly requested that it be included in the court\u2019s charge. The courts of North Carolina have often held that a party may not assign as error an instruction given by the court at his request. Overton v. Overton, 260 N.C. 139, 132 S.E. 2d 349; Chappell v. Dean, 258 N.C. 412, 128 S.E. 2d 830.\nPlaintiff has not shown that any error was committed in the trial of this case, and, accordingly, the verdict of the jury will not be disturbed.\nNo error.\nJudges Morris and Vaughn concur.",
        "type": "majority",
        "author": "BALEY, Judge."
      }
    ],
    "attorneys": [
      "Olive, Howard, Downer, Williams & Price, by Carl W. Howard, for plaintiff appellant.",
      "Kennedy, Covington, Lobdell & Hickman, by Wayne Paul Huckel for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "ALTON B. CRAVER, JR. v. NATIONWIDE MUTUAL INSURANCE COMPANY\nNo. 7426DC516\n(Filed 7 August 1974)\n1. Appeal and Error \u00a7 49\u2014 exclusion of testimony not shown in record\nThe exclusion of testimony cannot be held prejudicial error where the record fails to show what the excluded testimony would have been had it been admitted in evidence.\n2. Evidence \u00a7 31\u2014 best evidence rule \u2014 amendment of document\nThe best evidence rule does not require that when a document which is an amendment of an earlier document is admitted into evidence, the earlier document must be admitted at the same time as the amendment.\n3. Appeal and Error \u00a7 52\u2014 instructions agreed to by counsel \u2014 invited error\nAn attorney should not be allowed to participate in the drafting of an instruction, state to the court that it is acceptable to him, and then argue on appeal that the instruction which he helped to draft was erroneous.\nAppeal by plaintiff from Griffin, Judge, 28 January 1974 Session of District Court held in Mecklenburg County.\nHeard in Court of Appeals 13 June 1974.\nThis is an action to recover benefits under an insurance contract. Plaintiff alleged in his complaint that on 4 May 1969 he purchased a medical insurance policy from defendant. Under the terms of this policy defendant was required to compensate plaintiff for medical expenses incurred as a result of an accidental bodily injury. Plaintiff contended that on 12 July 1969 he accidentally fell off a ramp while pushing a wheelbarrow full of mortar and suffered a ruptured disc in his back.\nDefendant denied that plaintiff\u2019s back injury was the result of an accident, and contended that plaintiff suffered the injury while attempting to move heavy furniture in his home on the night of 12 July 1969.\nThe case was tried in the District Court of Mecklenburg County, and the jury returned a verdict in favor of defendant. From judgment entered in accordance with the verdict, plaintiff appealed to this Court.\nOlive, Howard, Downer, Williams & Price, by Carl W. Howard, for plaintiff appellant.\nKennedy, Covington, Lobdell & Hickman, by Wayne Paul Huckel for defendant appellee."
  },
  "file_name": "0660-01",
  "first_page_order": 692,
  "last_page_order": 695
}