{ "id": 8573436, "name": "HUBERT THYRONE BREWER v. OLDEN DONNELL GARNER and MAGDALENE H. GARNER", "name_abbreviation": "Brewer v. Garner", "decision_date": "1965-05-05", "docket_number": "", "first_page": "384", "last_page": "386", "citations": [ { "type": "official", "cite": "264 N.C. 384" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "121 S.E. 616", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653665 ], "opinion_index": 0, "case_paths": [ "/nc/187/0300-01" ] }, { "cite": "130 S.E. 724", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612811 ], "opinion_index": 0, "case_paths": [ "/nc/190/0692-01" ] }, { "cite": "118 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626226 ], "opinion_index": 0, "case_paths": [ "/nc/254/0337-01" ] } ], "analysis": { "cardinality": 398, "char_count": 7339, "ocr_confidence": 0.582, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3669347131821199 }, "sha256": "77cfa306b2088bbdce32d05f1f3fc918446f0acbd041fb4946acd2747a5422b9", "simhash": "1:133527bf2f4edcad", "word_count": 1195 }, "last_updated": "2023-07-14T15:18:06.877661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HUBERT THYRONE BREWER v. OLDEN DONNELL GARNER and MAGDALENE H. GARNER." ], "opinions": [ { "text": "Higgins, J.\nThe plaintiff\u2019s appeal presents a single question of law: Did the court commit prejudicial error on the issue of contributory negligence? The defendants, by vigorous cross-examination, sought to force from the plaintiff the admissions that he'was driving under the influence of liquor and, at the time of the accident, was attempting to light a cigarette.\nIn support of the charge the plaintiff was driving under the influence of liquor, the defendants offered the evidence of Mr. Bolick of the State Highway Patrol, who arrived on the scene thirty minutes after the collision but before the plaintiff, who was unconscious, had been removed from the Oldsmobile. The patrolman testified he detected the odor of some type of whisky in plaintiff\u2019s automobile. Plaintiff\u2019s counsel sought on cross-examination to have Mr. Bolick admit he had made an inconsistent statement and produced what purported to be a photostatic copy of a paper writing dated January 14, 1963, which the witness admitted, \u201cThis photostat is an exact copy of what I signed.\u201d The copy contained this statement: \u201cI could not say whether any of the parties had been drinking.\u201d The court, on defendants\u2019 objection, excluded the question and answer. The exclusion is the subject of Assignment of Error No. 1, based on Exception No. 15.\nThe plaintiff offered the evidence of Mr. Hundley who was present when Mr. Bolick examined plaintiff\u2019s automobile. He testified: \u201cI did not see any evidence of alcohol in the car.\u201d The surgeon who treated plaintiff\u2019s injuries one hour after he received them, testified: \u201cI did not detect any evidence of alcohol on plaintiff\u2019s breath when I sewed him up.\u201d\nWith respect to the defendants\u2019 allegations that plaintiff was intoxicated, the court charged:\n\u201cAnd then, finally, the defendants have alleged that the plaintiff was driving his motor vehicle under the influence of intoxicating beverages. That is contained in G.S. 20-138, and it provides that, \u2018It shall be unlawful and punishable as provided in Section 20-179 when any person, whether licensed or not, who is an habitual user of narcotic drugs, or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this State.\u2019 \u201d\nAssuming, without deciding, the odor of some type of whisky in plaintiff\u2019s vehicle some thirty minutes after the wreck would be sufficient to permit an inference the plaintiff was driving under the influence, then certainly it would be proper by way of impeachment for the plaintiff\u2019s counsel on cross-examination to show that on January 14, 1963, twenty-eight days after the accident, the witness had signed a statement saying, \u201cI could not say whether any of the parties had been drinking.\u201d\n\u201cThe right to have an opportunity for a fair and full cross-examination of a witness upon every phase of his examination-in-chief, is an absolute right and not a mere privilege.\u201d Templeton v. Highway Comm., 254 N.C. 337, 118 S.E. 2d 918; Milling Co. v. Highway Comm., 190 N.C. 692, 130 S.E. 724; State v. Hightower, 187 N.C. 300, 121 S.E. 616. After permitting the evidence of intoxication to go to the jury, it was error to exclude the cross-examination which weakened, if it did not destroy its effect altogether.\nThe charge underscored the importance of plaintiff\u2019s intoxication on the issue of contributory negligence. There was no evidence of intoxication except the odor of some type of whisky in and around the plaintiff\u2019s automobile thirty minutes after the collision. That odor, Mr. Bolick alone detected. The instruction on intoxication based on such equivocal evidence magnified the effect of the court\u2019s error in excluding Mr. Bolick\u2019s signed statement, \u201cI could not say whether any of the parties had been drinking.\u201d\nBy cross-examination, the defendants\u2019 counsel sought unsuccessfully to have the plaintiff admit that at the time of the collision he was in the act of lighting a cigarette. This the plaintiff categorically denied. However, Mrs. Garner, one of the defendants, over objection, was permitted to testify that two days after the accident and after the \u201cdemolished vehicle\u201d had been removed to Asheboro, (ten miles from the scene of the accident) she found a slightly burned cigarette in the floorboard of the vehicle. By what means the automobile was taken from the scene to Asheboro, who took it, and how many people had been around it in the meantime, were left to conjecture. The evidence that a slightly burned cigarette was found on the floor of the Oldsmobile, so removed in time and place, was too remote to have probative value and should have been excluded.\nFor the reasons assigned, there should be a new trial on the issues of negligence, contributory negligence, and if the plaintiff prevails on both, then on the issue of damages. To that end the judgment dismissing the action is\nReversed.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "Ottway Burton for plaintiff appellant.", "Jordan, Wright, Henson & Nichols by G. Marlin Evans for defendant appellees." ], "corrections": "", "head_matter": "HUBERT THYRONE BREWER v. OLDEN DONNELL GARNER and MAGDALENE H. GARNER.\n(Filed 5 May, 1965.)\n1. Evidence \u00a7 58\u2014\nWhere a patrolman testifies that when he arrived at the scene some thirty minutes after the accident he detected an odor of some type of whiskey in plaintiff\u2019s automobile, it is error for the court to exclude evidence that twenty-eight days after the accident the patrolman signed a statement that he could not say whether any of the parties had been drinking, since plaintiff\u2019s right to destroy or weaken a witness\u2019 testimony by a proper cross-examination is an absolute right.\n2. Evidence \u00a7 15; Automobiles \u00a7 37\u2014\nDefendant contended that plaintiff driver was attempting to light a cigarette at the time of the accident. Testimony that some two days after plaintiff\u2019s vehicle had been moved to a town some ten miles from the accident, a lightly burned cigarette was found on the floorboard of plaintiff\u2019s 'vehicle is too removed in time and place to have any probative value and should have been excluded.\nAppeal by plaintiff from Shaw,