{ "id": 8525820, "name": "WACHOVIA BANK AND TRUST CO., N.A. v. SOUTHEAST AIRMOTIVE, INC.", "name_abbreviation": "Wachovia Bank & Trust Co., N.A. v. Southeast Airmotive, Inc.", "decision_date": "1988-09-20", "docket_number": "No. 8826SC112", "first_page": "417", "last_page": "421", "citations": [ { "type": "official", "cite": "91 N.C. App. 417" } ], "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": "201 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "year": 1971, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "215 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "288 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564778 ], "year": 1975, "pin_cites": [ { "page": "61-62" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0053-01" ] } ], "analysis": { "cardinality": 435, "char_count": 8255, "ocr_confidence": 0.833, "pagerank": { "raw": 2.1973389648741883e-07, "percentile": 0.7747499950769331 }, "sha256": "a48dd2093053caf7fd52983af2961da22de21034bb6b3d1d25d4aca23c0dc794", "simhash": "1:8d471739717fc976", "word_count": 1340 }, "last_updated": "2023-07-14T21:33:36.579827+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wells concur." ], "parties": [ "WACHOVIA BANK AND TRUST CO., N.A. v. SOUTHEAST AIRMOTIVE, INC." ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nBy Assignments of Error Nos. 1 and 2 plaintiff contends the trial court erred in allowing defendant\u2019s expert witness, Dr. Hobart R. Wood, to testify over plaintiffs objections concerning \u201chis opinion as to whether or not the pilot of the airplane suffered an incapacitating heart attack while approaching to land\u201d and concerning \u201cthe condition of the pilot\u2019s heart.\u201d\nThese assignments of error are not supported by exceptions duly noted in the record or transcript as required by Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure. Thus, these assignments of error present no question for review.\nBy Assignments of Error Nos. 6 and 7 plaintiff contends the trial court erred in denying plaintiffs motion for a directed verdict at the close of all the evidence and in denying plaintiffs motion for judgment notwithstanding the verdict and motion for a new trial.\nThe Supreme Court, in Rose v. Motor Sales, 288 N.C. 53, 61-62, 215 S.E. 2d 573, 578 (1975), stated:\nThe trial judge may not direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses, even though the evidence is uncontradicted, the defendant\u2019s denial of an alleged fact, necessary to the plaintiffs right of recovery, being sufficient to raise an issue as to the existence of that fact, even though he offers no evidence tending to contradict that offered by the plaintiff.\nIn the present case, plaintiff offered evidence sufficient to support an inference that defendant was negligent. However, plaintiffs evidence did not compel such a finding, and the credibility of plaintiffs evidence was for the jury. Also, defendant denied that it was negligent and denied that its actions were the proximate cause of plaintiffs alleged damages. Defendant further introduced evidence that defendant\u2019s pilot could have suffered a sudden physical incapacitation that caused the crash. \u201cThe established policy of this State \u2014 declared in both the constitution and statutes \u2014 is that the credibility of testimony is for the jury, not the court, and that a genuine issue of fact must be tried by a jury unless this right is waived.\u201d Cutts v. Casey, 278 N.C. 390, 421, 180 S.E. 2d 297, 314 (1971). The trial court did not err in denying plaintiffs motion for a directed verdict.\n\u201cThe propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as that of a motion for a directed verdict. . . .\u201d Dickinson v. Pake, 284 N.C. 576, 584, 201 S.E. 2d 897, 903 (1974). We cannot say that, considering the evidence in the light most favorable to defendant, plaintiff was entitled to a judgment notwithstanding the verdict. Since plaintiff failed to discuss in its brief the trial court\u2019s denial of its motion for a new trial, this question raised by Assignment of Error No. 7 is deemed abandoned. See Rule 28(a) of the North Carolina Rules of Appellate Procedure. Assignments of Error Nos. 6 and 7 are without merit.\nPlaintiff next contends \u201cthe trial court committed reversible error when it excluded plaintiffs expert pilot\u2019s opinion that, based on a reasonable certainty, the pilot of defendant\u2019s aircraft did not exercise reasonable care and was not incapacitated during the approach to land but allowed defendant\u2019s lay witnesses to express speculative opinions on a variety of topics.\u201d This argument is based on Assignments of Error Nos. 3, 4 and 5 which are set out in the record as follows:\n3. The trial court erred in not allowing plaintiffs expert witness, Velta S. Benn, to testify as to her opinion that the pilot had not suffered any physical incapacitation, while allowing defendant\u2019s witnesses Gary Barrier, and Gene Love to testify as to their opinion that the pilot had suffered some form of incapacitation.\n4. The trial court erred in not allowing plaintiffs expert, Velta S. Benn, to testify regarding her opinion as to whether or not the pilot had exercised reasonable care in the operation of the airplane.\n5. The trial court erred in permitting defendant\u2019s witness, Wendell Karr, to testify over plaintiffs objections regarding an incident that occurred in which he passed out while piloting an airplane during the early 1950\u2019s.\nAssignment of Error No. 3 is in violation of Rule 10(c) of the North Carolina Rules of Appellate Procedure which states that each assignment of error \u201cshall state plainly and concisely and without argumentation the basis upon which error is assigned. . . .\u201d This assignment of error is argumentative and not concisely stated. More importantly, all three of these assignments of error are not supported by exceptions duly noted in the record or transcript and thus present no question for review. See Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure.\nBy Assignments of Error Nos. 1-5 plaintiff contends \u201cthe trial judge\u2019s incorrect evidentiary rulings constituted reversible error because they seriously prejudiced the jury\u2019s ability objectively to evaluate the evidence.\u201d These assignments of error are not supported by exceptions duly noted in the record or transcript as required by Rule 10(b)(1). Also, these assignments of error merely repeat what plaintiff has argued in its earlier contentions. Therefore, they present no question for review and are without merit.\nThe judgments of a trial court are presumed to be correct, and the burden is on the appellant to rebut the presumption of verity. The Rules of Appellate Procedure, if followed, provide an appealing party a means by which it can properly attack judgments, orders, and rulings of a trial court in order to show prejudicial error. If the appealing party fails to properly utilize the Rules of Appellate Procedure, the presumption of verity will not be overcome, and the appellate courts will not search the record or the transcript in order to reverse the judgments, orders and rulings of a trial court having proper jurisdiction.\nIn light of our disposition of plaintiffs appeal, it is unnecessary for us to discuss defendant\u2019s cross-assignment of error to the court\u2019s denial of defendant\u2019s motion for a directed verdict on plaintiffs claim for consequential damages at the close of all of the evidence.\nNo error.\nJudges Arnold and Wells concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Womble Carlyle Sandridge & Rice, by Donald F. Lively, and R. Howard Grubbs, for plaintiff, appellant.", "Parker, Poe, Thompson, Bernstein, Gage & Preston, by Irvin W. Hankins, III, and Stephen R. Hunting, for defendant, appellee." ], "corrections": "", "head_matter": "WACHOVIA BANK AND TRUST CO., N.A. v. SOUTHEAST AIRMOTIVE, INC.\nNo. 8826SC112\n(Filed 20 September 1988)\nNegligence \u00a7 29; Appeal and Error 8 24\u2014 damages in plane crash \u2014 no directed verdict or judgment n.o.v. \u2014necessity for exceptions \u2014 no questions presented for review\nIn an action to recover damages for the alleged negligence of defendant in the transportation of certain cancelled checks which were burned, mutilated, or destroyed in a plane crash, plaintiff was not entitled to a directed verdict or to judgment n.o.v. where plaintiffs evidence did not compel a finding that defendant was negligent; defendant denied that it was negligent and denied that its actions were the proximate cause of plaintiffs alleged damages; and defendant introduced evidence that its pilot could have suffered a sudden physical incapacitation which caused the crash, and this raised a genuine issue of fact for the jury. Furthermore, a number of plaintiffs assignments of error were not supported by exceptions duly noted in the record or transcript, and they thus presented no question for review.\nAppeal by plaintiff from Gray, Judge. Judgment entered 31 July 1987 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 6 September 1988.\nThis is a civil action wherein plaintiff seeks to recover damages for the alleged negligence of defendant in the transportation of certain cancelled checks which were burned, mutilated, or destroyed in a plane crash on 15 November 1983. The jury returned a verdict in favor of defendant, and the court entered judgment on the verdict on 31 July 1987. On 25 August 1987, the court entered an order denying plaintiffs motion for judgment notwithstanding the verdict or a new trial. Plaintiff appealed.\nWomble Carlyle Sandridge & Rice, by Donald F. Lively, and R. Howard Grubbs, for plaintiff, appellant.\nParker, Poe, Thompson, Bernstein, Gage & Preston, by Irvin W. Hankins, III, and Stephen R. Hunting, for defendant, appellee." }, "file_name": "0417-01", "first_page_order": 445, "last_page_order": 449 }