{
  "id": 8525463,
  "name": "JACK A. LONDON, Administrator of the Estate of Marty Allen London, Deceased v. TIMOTHY RAY TURNMIRE",
  "name_abbreviation": "London v. Turnmire",
  "decision_date": "1985-05-07",
  "docket_number": "No. 8425SC961",
  "first_page": "568",
  "last_page": "570",
  "citations": [
    {
      "type": "official",
      "cite": "74 N.C. App. 568"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "178 S.E. 2d 490",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "277 N.C. 704",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8567498
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/277/0704-01"
      ]
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  "last_updated": "2023-07-14T16:43:43.207286+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Phillips and Cozort concur."
    ],
    "parties": [
      "JACK A. LONDON, Administrator of the Estate of Marty Allen London, Deceased v. TIMOTHY RAY TURNMIRE"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe issue which is dispositive of this appeal is whether the trial court erred by allowing the defendant to cross-examine Pearline G. London, the deceased\u2019s mother, regarding allegations which the witness, acting as guardian ad litem for her daughter, made against the deceased in another action. Believing that this action was error, we award the plaintiff a new trial.\nAt trial the plaintiff offered evidence from Mrs. London which was designed to establish the damages which were caused by the deceased\u2019s death. On cross-examination the defendant was able to show, over plaintiffs objection, that the witness, as guardian ad litem for her minor daughter, had also signed a complaint in which she alleged that both the deceased and Turnmire were negligent in causing this accident. The court also allowed the defendant to introduce that complaint into evidence. From the record it appears that the court permitted this line of cross-examination upon the theory that this evidence might be used to impeach Mrs. London.\nIn North Carolina a witness\u2019s credibility may be attacked on cross-examination by showing inter alia prior bad acts, a bad moral character, a mental or physical condition affecting her memory, perception or veracity, or by evidence that the witness has made other statements inconsistent with her testimony at trial. See generally 1 Brandis on North Carolina Evidence \u00a7\u00a7 38, 42 (1982). The only one of these reasons which could possibly support the trial court\u2019s rulings allowing this line of cross-examination would be to impeach by a prior inconsistent statement. It is the general rule that a party may cross-examine a witness about statements which have been made either orally or in writing when those statements conflict with any portion of the witness\u2019s testimony. State v. Penley, 277 N.C. 704, 178 S.E. 2d 490 (1971); 1 Brandis on North Carolina Evidence \u00a7 46 (1982). In this case, however, the evidence of the prior suit which was elicited on cross-examination in no way contradicted the testimony which Mrs. London previously had given. The evidence which Mrs. London had given prior to the cross-examination did not deal with how the accident occurred but had instead focused on the damages which were caused by her son\u2019s death. Thus, it was improper to permit this line of questioning to impeach Mrs. London under the theory of prior inconsistent statements.\nThe defendant also argues that this line of questioning was proper to impeach the credibility of Melissa Blackburn. This argument is without merit since a person may not be impeached by an inconsistent statement of another. See 1 Brandis on North Carolina Evidence \u00a7 46 (1982). Thus, we find that it was error to allow cross-examination regarding the prior complaint.\nHaving found error it must now be determined whether the error was prejudicial. We cannot say that the jury\u2019s verdict was not influenced by the admission of the improper evidence, therefore, we find that the erroneous admission constituted prejudicial error. For the above stated reasons we award the plaintiff a\nNew trial.\nJudges Phillips and Cozort concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Byrd, Byrd, Ervin, Blanton, Whisnant & McMahon, by Robert B. Byrd and Sam J. Ervin, IV; and Todd, Vanderbloemen & Respess, by James R. Todd, Jr., for plaintiff appellant.",
      "Patton, Starnes, Thompson & Aycock, by Thomas M. Starnes, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JACK A. LONDON, Administrator of the Estate of Marty Allen London, Deceased v. TIMOTHY RAY TURNMIRE\nNo. 8425SC961\n(Filed 7 May 1985)\n1. Witnesses \u00a7 4.1\u2014 impeachment \u2014 witness\u2019s complaint not prior inconsistent statement\nIn a wrongful death action arising out of an automobile accident, cross-examination of deceased\u2019s mother about a complaint she filed as guardian ad litem for her minor daughter in which she alleged that both deceased and defendant were negligent in causing the accident was not proper for impeachment under the theory of prior inconsistent statements where the witness\u2019s testimony dealt only with damages and not with how the accident occurred.\n2. Witnesses \u00a7 4.1\u2014 impeachment \u2014 inconsistent statement of another\nA witness may not be impeached by an inconsistent statement of another.\nAPPEAL by plaintiff from Davis, James C., Judge. Judgment entered 16 May 1984 in Superior Court, BURKE County. Heard in the Court of Appeals 18 April 1985.\nThis is a wrongful death action arising out of the death of Marty Allen London in an automobile accident involving cars driven by the deceased and the defendant. The defendant counterclaimed seeking damages for personal injuries. The evidence offered at trial tended to show that on 7 March 1982, a head-on collision occurred between the parties\u2019 vehicles in the deceased\u2019s lane of travel. The evidence as to what occurred immediately preceding the collision was in sharp conflict. The plaintiffs version of what occurred was told by the deceased\u2019s sister, Melissa Blackburn, a passenger in his vehicle. She testified that the vehicle driven by the defendant swerved into the deceased\u2019s lane of traffic and that in spite of attempted evasive action on the part of the deceased the collision occurred. The defendant\u2019s evidence was that as he approached the vehicle driven by the deceased, the vehicle swerved into his lane, and that when he slammed on his brakes to attempt to avoid the deceased he slid into the other lane of traffic striking the deceased head-on. The jury found that neither the deceased nor the defendant was negligent. Based upon this verdict the court entered a judgment denying recovery to both parties. From this judgment, plaintiff appealed.\nByrd, Byrd, Ervin, Blanton, Whisnant & McMahon, by Robert B. Byrd and Sam J. Ervin, IV; and Todd, Vanderbloemen & Respess, by James R. Todd, Jr., for plaintiff appellant.\nPatton, Starnes, Thompson & Aycock, by Thomas M. Starnes, for defendant appellee."
  },
  "file_name": "0568-01",
  "first_page_order": 600,
  "last_page_order": 602
}