{
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  "name": "ROBERT W. McNABB and wife WALLANIA SHELL McNABB v. TOWN OF BRYSON CITY and CARL H. ARVEY, in his capacity as Chief of Police",
  "name_abbreviation": "McNabb v. Town of Bryson City",
  "decision_date": "1986-08-05",
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    "judges": [
      "Judges Eagles and Martin concur."
    ],
    "parties": [
      "ROBERT W. McNABB and wife WALLANIA SHELL McNABB v. TOWN OF BRYSON CITY and CARL H. ARVEY, in his capacity as Chief of Police"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff Robert W. McNabb sued the Town of Bryson City and its police chief for injuries sustained when the motorcycle he was riding was struck by a police car owned by the Town and being operated by the Police Chief. A jury awarded plaintiff $77,000 in damages. Defendant Town of Bryson City appeals contending the trial court erred (1) in admitting evidence of plaintiffs attempted suicide in October 1983, some six months after the accident; (2) in excluding plaintiffs military medical records offered by defendant which showed a suicide attempt by plaintiff in 1972; and, (3) in awarding prejudgment interest against the defendant as opposed to defendant\u2019s insurer. We affirm the trial court\u2019s evi-dentiary rulings. We reverse the award of prejudgment interest against the Town of Bryson City and remand for entry of prejudgment interest against defendant\u2019s insurer. The facts follow.\nPlaintiff Robert W. McNabb was riding a motorcycle on U.S. Highway 19 in Bryson City on the morning of 22 April 1983. He v/as involved in a collision with a police car owned by the Town of Bryson City and being operated by its Police Chief, Carl H. Arvey. Plaintiff was twenty-eight years old and the father of three children at the time of the accident. As a result of the accident, he sustained injuries resulting in permanent impairment of function in his lower back and limitations on his ability to lift, bend, and exert himself. Before the accident, Mr. McNabb was employed as an emergency medical technician with the Swain County Ambulance Service, and he worked part-time in a hospital. He was not able to resume that employment after the accident and did not find other employment until July 1984, when he accepted a job as a jailer at the Swain County Sheriffs Department.\nPlaintiff and his wife filed suit against the Town and its police chief on 14 June 1983, alleging negligence. Defendant Town of Bryson City appeals from a jury verdict awarding Mr. McNabb $77,000.00 in damages and his wife $20,000.00 for loss of consortium. No issues involving the award to the wife are being considered on appeal; thus, all references in this opinion to \u201cplaintiff\u2019 refer to Robert W. McNabb, the driver of the motorcycle.\nThe defendant has not challenged the jury\u2019s finding of negligence. The appeal raises evidentiary questions concerning the plaintiffs attempted suicides both before and after the accident. First, we consider defendant\u2019s assignments of error concerning the admission into evidence of testimony relating to plaintiffs attempted suicide in October 1983, six months after the accident. Over a continuing objection of defendant, plaintiff was allowed to testify that as a result of the accident he became depressed and took an overdose of pills which resulted in his hospitalization for four or five days and out-patient counseling for a period of time thereafter. Plaintiff took the overdose of pills in October 1983. There is no evidence that plaintiff suffered any physical injuries as a result of the suicide attempt. As a result of this hospitalization and treatment, he received a medical bill in the amount of $675.00 from Smoky Mountain Mental Health. This bill was admitted into evidence over defendant\u2019s objection. On direct examination, however, Dr. Ben Monroe, who treated Mr. McNabb on referral from Smoky Mountain Mental Health, testified that Mr. McNabb had been admitted on a voluntary basis \u201cbecause he had made several suicidal attempts and suicidal gestures; he had been extremely depressed and that had led to his making some suicidal attempts and suicidal gestures . . . .\u201d Defendant has taken no exception to this testimony by Dr. Monroe. Dr. Monroe further testified that as a result of stress caused by the automobile accident, plaintiff has suffered an adjustment disorder and depression, for which Dr. Monroe treated him. No exception has been taken to this testimony. Defendant, however, objected to and assigns as error the following colloquy between plaintiffs counsel and Dr. Monroe:\nMR. Large: Doctor, do you have an opinion satisfactory to yourself based on a reasonable degree of certainty and based on years of experience and upon your treatment and observation of Robert McNabb, as to the cause of the mental problems that you have talked about today?\nMR. KropelnickI: Objection.\nCOURT: Overruled.\nException No. 20\nMr. Large: Do you have such an opinion?\nDr. Monroe: Yes.\nMr. Kropelnicki: Motion to strike.\nCourt: Denied.\nException No. 21\nMr. LARGE: What is that opinion, Doctor?\nMr. Kropelnicki: Objection, no foundation at all.\nCOURT: Objection overruled, you may answer the question.\nException No. 22\nWITNESS: Well, my opinion that the depression that I saw from Mr. McNabb was caused by the \u2014 as a result of his injury that he received; the changes that it made in his life; his inability to work and the stress that it placed on his marriage.\nDefendant assigns as error the trial court\u2019s allowing into evidence plaintiff McNabb\u2019s testimony concerning his suicide attempt, the $675.00 medical bill from Smoky Mountain Mental Health, and Dr. Monroe\u2019s opinion as to the cause of defendant\u2019s \u201cmental problems.\u201d Defendant contends that the admission of this evidence erroneously allowed the jury to consider as an element of damages plaintiffs attempted suicide following the automobile accident and the treatment and medical expenses related to that voluntary act. We find no prejudicial error in the trial court\u2019s rulings.\nWe note initially that the plaintiff is not entitled to recover damages from the defendant for his attempted suicide in this case because under any of the tests currently being advanced, plaintiffs evidence fails to establish a causal relationship between the defendant\u2019s wrongful acts and plaintiffs attempted suicide. See Hall v. Coble Dairies, Inc., 234 N.C. 206, 67 S.E. 2d 63 (1951); An-not., 77 A.L.R. 3d 311 (1977). We need not comment further on this point.\nAccepting for the moment defendant\u2019s contention that the $675.00 medical bill and Dr. Monroe\u2019s opinion as to the cause of plaintiffs \u201cmental problems\u201d relate solely to plaintiffs attempted suicide, defendant has failed to show prejudicial error in the admission of Dr. Monroe\u2019s testimony and plaintiffs testimony concerning his attempted suicide. It is a fundamental principle of appellate review that an appellant alleging improper admission of evidence has the burden of showing that it was unfairly prejudiced or that the jury verdict was probably influenced thereby, that appellant has been denied some substantial right and that the result of the trial would have been materially more favorable to appellant. Burgess v. C. G. Tate Construction Co., 264 N.C. 82, 140 S.E. 2d 766 (1965); Royals v. Baggett, 262 N.C. 541, 138 S.E. 2d 141 (1964); Collins v. Lamb, 215 N.C. 719, 2 S.E. 2d 863 (1939); G.S. 8C-1, Rule 103. Assuming that the evidence of plaintiffs attempted suicide was irrelevant because plaintiff did not establish a causal relationship between defendant\u2019s negligence and the attempted suicide, we see no prejudice in its admission. Defendant extensively cross-examined the witnesses concerning the October 1983 suicide attempt. The defendant was allowed to extensively cross-examine the witnesses about plaintiff\u2019s alleged prior suicide attempt in 1972 to impeach his credibility. Furthermore, plaintiff produced uncontradicted evidence of actual medical expenses amounting to $6,147.18, excluding the $675.00 medical bill from Smoky Mountain Mental Health in question, and past and future lost earnings (discounted to present value) of $75,124.00 caused by the defendant\u2019s negligence. The jury awarded the plaintiff only $77,000.00, less than the amount shown in the uncontradicted evidence, excluding the bill in question.\nIn sum, defendant has failed to show any unfair prejudice in the admission of evidence concerning the October 1983 attempted suicide. Nor has defendant shown the denial of a substantial right, an improperly influenced jury verdict, or that the result of the trial would have been materially more favorable to it.\nWe further note, on the question of the admissibility of the $675.00 medical bill from Smoky Mountain Mental Health and Dr. Monroe\u2019s opinion as to plaintiff\u2019s mental problems, that this evidence did not concern plaintiff\u2019s attempted suicide. The defendant does not contend that plaintiff was not entitled to recover damages for his mental and emotional disturbance (ie., depression) caused by the accident. Under the facts of this case such damages are recoverable. See Craven v. Chambers, 56 N.C. App. 151, 287 S.E. 2d 905 (1982); Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 268 S.E. 2d 855, disc. rev. denied, 301 N.C. 239, 283 S.E. 2d 136 (1980).\nA careful review of Dr. Monroe\u2019s testimony shows that his opinion was as to the cause of plaintiffs depression. Only at the first of Dr. Monroe\u2019s testimony is any mention made of plaintiffs attempted suicide, and that testimony merely relates to background information. Defendant has not excepted to its admission. Thereafter, on direct examination, Dr. Monroe\u2019s testimony concerns the stress and resulting depression experienced by plaintiff as a result of the accident and his injuries. With the evidence of psychological injury being admissible, the evidence of treatment for these injuries and medical bills for that treatment was also properly admitted. Craven v. Chambers, supra. And, since the $675.00 medical bill was not put in the record, we cannot determine what portion of it, if any, is attributable to the attempted suicide. The defendant\u2019s assignments of error relating to evidence of plaintiffs October 1983 attempted suicide, Dr. Monroe\u2019s testimony, and the bill from Smoky Mountain Mental Health are overruled.\nNext, defendant assigns as error the trial court\u2019s refusal to admit into evidence plaintiff\u2019s military medical records from 1972. The record shows that the trial court excluded these records as, among other things, irrelevant. Defendant contends these records, which show plaintiff attempted suicide and complained of back pain while in the army, are relevant because they show \u201cthat while Mr. McNabb was in the United States Army, he complained of problems with his back and attempted suicide on at least one occasion, threatening to attempt suicide if he was not released from military service.\u201d\nThe cornerstone of admissibility of all evidence is that it must be relevant. G.S. 8C-1, Rule 402. To be relevant the evidence must have some \u201ctendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d G.S. 8C-1, Rule 401. Defendant offered no evidence to establish the relevancy of the eleven-year-old medical records to the issues in this case: defendant\u2019s negligence and plaintiffs damages resulting therefrom. And the relevancy of the offered evidence is not apparent from the records themselves. Defendant offered no evidence to support his theory that the medical records show that the injuries which plaintiff claimed to suffer as a result of the accident were pre-existing or imagined. Defendant extensively cross-examined plaintiff and his medical experts about these medical records in an attempt to cast doubt upon the validity of plaintiffs injuries. This effort proved fruitless, and defendant offered no evidence of its own to connect the eleven-year-old medical records with the injuries plaintiff claimed. What defendant did accomplish through its cross-examination of plaintiffs witness concerning the military medical records was to put before the jury that plaintiff served only a few months in the Army, none of which was overseas, and that Mr. McNabb, in the words of defendant\u2019s counsel, \u201cdidn\u2019t exactly win a Congressional Medal of Honor.\u201d We hold the trial court correctly excluded the records of plaintiffs attempted suicide and back pain in 1972.\nLastly, defendant assigns as error the trial court\u2019s awarding prejudgment interest against the defendant, Town of Bryson City, rather than its insurer. We agree with the defendant that the trial court should have awarded the prejudgment interest against the defendant\u2019s insurer. In Lowe v. Tarble, 313 N.C. 460, 329 S.E. 2d 648 (1985), the court interpreted language essentially identical to the language in the defendant\u2019s liability policy as including coverage for prejudgment interest under G.S. 24-5 as \u201ccosts.\u201d We vacate the judgment awarding prejudgment interest against the defendant and remand for entry of judgment awarding prejudgment interest against the defendant\u2019s insurer.\nAffirmed in part, vacated in part, and remanded.\nJudges Eagles and Martin concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Hunter & Large by Raymond D. Large, Jr., and William P. Hunter for plaintiff appellees.",
      "Carter and Kropelnicki by Steven Kropelnicki, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "ROBERT W. McNABB and wife WALLANIA SHELL McNABB v. TOWN OF BRYSON CITY and CARL H. ARVEY, in his capacity as Chief of Police\nNo. 8530SC975\n(Filed 5 August 1986)\n1. Damages \u00a7 13.1\u2014 attempted suicide \u2014 evidence irrelevant \u2014 harmless error\nAssuming that evidence of plaintiffs attempted suicide some six months after the accident in question was irrelevant because plaintiff failed to establish a causal relationship between defendant\u2019s negligence and the attempted suicide, the admission of such evidence was not prejudicial error in this case.\n2. Damages \u00a7\u00a7 3.4, 13.1\u2014 depression caused by accident \u2014 admissibility of evidence\nPlaintiff was entitled to recover damages for depression caused by the accident in question, and the trial court properly admitted medical testimony that plaintiff suffered stress and depression as a result of the injuries he received in the accident and a medical bill for the treatment of plaintiffs depression.\n3. Evidence \u00a7 29.3\u2014 past military medical records \u2014 inadmissibility\nMilitary medical records showing that plaintiff attempted suicide and complained of back pain while in the army in 1972 were not admissible in an action brought by plaintiff motorcyclist to recover for physical and psychological injuries received in a 1983 collision with a police car where defendant town offered no evidence to support its theory that the medical records show that plaintiffs claimed injuries were pre-existing or imagined.\n4. Insurance \u00a7 110.1\u2014 prejudgment interest \u2014 erroneous award against insured\nThe trial court erred in awarding prejudgment interest against defendant town rather than against the town\u2019s insurer. N.C.G.S. \u00a7 24-5.\nAppeal by defendant, Town of Bryson City, from Hyatt, Judge. Judgment entered 30 April 1985 in Superior Court, SWAIN County. Heard in the Court of Appeals 17 January 1986.\nHunter & Large by Raymond D. Large, Jr., and William P. Hunter for plaintiff appellees.\nCarter and Kropelnicki by Steven Kropelnicki, Jr., for defendant appellant."
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  "file_name": "0385-01",
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