{ "id": 8559360, "name": "DR. S. J. POTTS, Plaintiff, v. JAMES E. HOWSER, t/a HOWSER BOAT COMPANY, Defendant and JACK R. HARRIS, Additional Defendant", "name_abbreviation": "Potts v. Howser", "decision_date": "1968-06-14", "docket_number": "", "first_page": "49", "last_page": "61", "citations": [ { "type": "official", "cite": "274 N.C. 49" } ], "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": "148 S.E. 2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "267 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559720 ], "opinion_index": -1, "case_paths": [ "/nc/267/0484-01" ] }, { "cite": "18 S.E. 2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "168" } ], "opinion_index": 0 }, { "cite": "220 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11307444 ], "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0642-01" ] }, { "cite": "92 S.E. 355", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270703 ], "opinion_index": 0, "case_paths": [ "/nc/173/0496-01" ] }, { "cite": "78 S.E. 2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609818 ], "opinion_index": 0, "case_paths": [ "/nc/238/0401-01" ] }, { "cite": "49 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682182 ], "opinion_index": 0, "case_paths": [ "/nc/49/0175-01" ] }, { "cite": "175 S.E. 179", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632400 ], "opinion_index": 0, "case_paths": [ "/nc/206/0687-01" ] }, { "cite": "92 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219597 ], "opinion_index": 0, "case_paths": [ "/nc/244/0175-01" ] }, { "cite": "178 S.E. 848", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 821", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628843 ], "opinion_index": 0, "case_paths": [ "/nc/207/0821-01" ] }, { "cite": "145 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559584 ], "opinion_index": 0, "case_paths": [ "/nc/266/0055-01" ] }, { "cite": "12 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "260" } ], "opinion_index": 0 }, { "cite": "218 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624322 ], "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0722-01" ] }, { "cite": "92 S.E. 145", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270313 ], "opinion_index": 0, "case_paths": [ "/nc/173/0427-01" ] }, { "cite": "49 S.E. 955", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "956" } ], "opinion_index": 0 }, { "cite": "137 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656905 ], "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/137/0491-01" ] }, { "cite": "83 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609216 ], "opinion_index": 0, "case_paths": [ "/nc/240/0680-01" ] }, { "cite": "47 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12164507 ], "opinion_index": 0, "case_paths": [ "/nc/229/0020-01" ] }, { "cite": "98 S.E. 2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627058 ], "opinion_index": 0, "case_paths": [ "/nc/246/0469-01" ] }, { "cite": "110 S.E. 2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625733 ], "opinion_index": 0, "case_paths": [ "/nc/250/0673-01" ] }, { "cite": "119 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627026 ], "opinion_index": 0, "case_paths": [ "/nc/254/0496-01" ] }, { "cite": "120 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567853 ], "opinion_index": 0, "case_paths": [ "/nc/255/0172-01" ] }, { "cite": "149 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560614 ], "opinion_index": 0, "case_paths": [ "/nc/267/0735-01" ] }, { "cite": "90 S.E. 2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624855 ], "opinion_index": 0, "case_paths": [ "/nc/243/0346-01" ] }, { "cite": "136 A.L.R. 413", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "20 A. 2d 84", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "128 Conn. 62", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1607773 ], "opinion_index": 0, "case_paths": [ "/conn/128/0062-01" ] }, { "cite": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "236 S.W. 2d 776", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10215360, 2328379 ], "opinion_index": 0, "case_paths": [ "/sw2d/236/0776-01", "/tex/150/0012-01" ] }, { "cite": "150 Tex. 12", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2328379 ], "opinion_index": 0, "case_paths": [ "/tex/150/0012-01" ] }, { "cite": "201 S.W. 2d 731", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "304 Ky. 565", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2848633 ], "opinion_index": 0, "case_paths": [ "/ky/304/0565-01" ] }, { "cite": "138 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "262 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570996 ], "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0663-01" ] }, { "cite": "254 N.C. 810", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "148 S.E. 2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "267 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559720 ], "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0484-01" ] } ], "analysis": { "cardinality": 1242, "char_count": 33220, "ocr_confidence": 0.562, "pagerank": { "raw": 6.840773580742838e-07, "percentile": 0.964223782930974 }, "sha256": "10c247b5e9ce616476858bf2c35d4110b8fce2e2d7c5f33cb0059836703d710f", "simhash": "1:f3777a8ef6b506f7", "word_count": 5644 }, "last_updated": "2023-07-14T17:57:51.245619+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DR. S. J. POTTS, Plaintiff, v. JAMES E. HOWSER, t/a HOWSER BOAT COMPANY, Defendant and JACK R. HARRIS, Additional Defendant." ], "opinions": [ { "text": "HusKiNS, J.\nPlaintiff preserves four assignments, to wit: (1) the court erred in failing to instruct the jury concerning plaintiff\u2019s right to recover damages for aggravation of a pre-existing physical condition; (2) the court erred in admitting hearsay evidence of a medical report by a doctor not present in court; (3) the court erred in admitting prejudicial evidence which was irrelevant and immaterial, to wit: (a) evidence of plaintiff\u2019s bad character, (b) evidence relating to negligence, (c) evidence of a subsequent accident, and (d) remote medical evidence; and (4) the court erred in failing to enter judgment in favor of plaintiff for at least nominal damages and court costs. These assignments will be discussed in that order. All other assignments are deemed abandoned under Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810.\n\u201cThe general rule is that where the result of the accident is to bring into activity a dormant or incipient disease, or one to which the injured person is predisposed, the defendant is liable for the entire damages which ensue, for it cannot be said that the development of the disease as a result of the injury was not the consequence which might naturally or ordinarily follow as a result of the injury, and therefore, the negligent person may be held liable therefor.\u201d 22 Am. Jur. 2d, Damages \u00a7 123. In Lockwood v. McCaskill, 262 N.C. 663, 670, 138 S.E. 2d 541, 546, it was held that if defendant\u2019s misconduct \u201camounted to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by plaintiff notwithstanding the fact that these damages were unusually extensive because of peculiar susceptibility.\u201d\nAll the evidence-tends to show that Dr. Potts was suffering from a pre-existing condition (variously described as fibrositis, arthritis, tenosynovitis and rheumatism), which was not activated from a dormant state by the accident. Rather, there is evidence from which the jury could find that plaintiff\u2019s diseased condition was active prior to the accident, and its severity was increased and aggravated as a result of defendant\u2019s negligence. This calls for application of legal principles aptly stated in 25 C.J.S., Damages \u00a7 21, p. 661, as follows:\n\u201cOn the other hand, where the wrongful act does not cause a diseased condition but only aggravates and increases the severity of a condition existing at the time of the injury, the injured person may recover only for such increased or augmented sufferings as are the natural and proximate result of the wrongful act, or, as otherwise stated, where a pre-existing disease is aggravated by the wrongful act of another person, the victim\u2019s recovery in damages is limited to the additional injury caused by the aggravation over and above the consequences, which the pre-existing disease, running its normal course, would itself have caused if there had been no aggravation by the wrongful injury.\u201d\nAn injured person is entitled to recover all damages proximately caused by the defendant\u2019s negligence. Even so, when his injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable only to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff\u2019s condition. \u201cThe defendant is not liable for damages . . . attributable solely to the original condition.\u201d 22 Am. Jur. 2d, Damages \u00a7 124. Plaintiff is confined to those damages due to its enhancement or aggravation. Louisville Taxi Cab and Transfer Co. v. Hill, 304 Ky. 565, 201 S.W. 2d 731; Sterrett v. East Texas Motor Freight Lines, 150 Tex. 12, 236 S.W. 2d 776. Compare Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265.\nIt was held in Mourison v. Hansen, 128 Conn. 62, 20 A. 2d 84, 136 A.L.R. 413, that one injured by the negligence of another is entitled to full compensation for all damage proximately resulting from the negligence, \u201ceven though the injuries are more serious than they would otherwise have been because of a pre-existing arthritic condition.\u201d Plaintiff \u201cwas entitled to damages to the extent that the jury found her condition was so aggravated by the defendant\u2019s wrongful act.\u201d\nIn the case before us, the court twice made reference in the charge to plaintiff\u2019s pre-existing condition, each time in the form of a contention as follows:\n\u201cNow, the defendant argues and contends otherwise. He argues and contends that this plaintiff had certain conditions, pre-existing conditions, and that he had not suffered any substantial injury, if any, to his person because of this collision, that he may have been thrown into the water, and that if there is any damage, it would be damage to his pre-existing condition, and that he did not suffer any substantial injury or damage because of the negligence on the part of the defendant,\u201d\nAgain, \u201cNow, the defendant argues and contends otherwise. He argues and contends that the plaintiff was not hurt on this occasion, that mostly he was thrown out into the water and that if he was suffering any injuries, that it was a re-occurrence or flare-up of the pre-existing condition and that that was not a substantial injury or damage to this plaintiff.\u201d\nIn each instance the court was stating contentions of the defendant following a statement of plaintiff\u2019s contentions. No instruction of law was given with reference to these contentions, and the inference is left that if the jury should find that plaintiff\u2019s pain and suffering, loss of earnings and medical expenses were attributable to a pre-existing disease or infirmity plaintiff could not recover. The legal significance of negligent acts on the part of the defendant which aggravated or accelerated a pre-existing condition was not explained. This was a substantive feature of the controversy and it was incumbent upon the court to instruct the jury with reference to it even in the absence of a specific request. G.S. 1-180. It was so held in Harris v. Greyhound Corp., 243 N.C. 346, 90 S.E. 2d 710. See also Saunders v. Warren, 267 N.C. 735, 149 S.E. 2d 19; Westmoreland v. Gregory, 255 N.C. 172, 120 S.E. 2d 523; Byrnes v. Ryck, 254 N.C. 496, 119 S.E. 2d 391; Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295; Glenn v. Raleigh, 246 N.C. 469, 98 S.E. 2d 913; Lewis v. Watson, 229 N.C. 20, 47 S.E. 2d 484. The court\u2019s general instruction on the measure of damages was insufficient to satisfy this requirement. Plaintiff\u2019s first assignment of error must therefore be sustained.\nPlaintiff\u2019s second assignment of error is based on alleged violations of the Hearsay Rule. The following cross examination of plaintiff concerning a medical report by Dr. Floyd was permitted over objection:\n\u201cQ. And I\u2019ll ask you if it didn\u2019t contain this: Under paragraph One-A, entitled: \u2018Diagnosis and Concurrent Conditions\u2019 \u2014 I\u2019ll ask you if it didn\u2019t contain this statement: \u2018Multiple contusions, left arm, left shoulder and upper back and neck from auto accident\u2019?\n\u201cA. That\u2019s right.\n\u201cQ. And I\u2019ll ask you if it didn\u2019t contain this statement, in answer to paragraph six, subsection B, \u2018If Yes, estimated date of termination and cost of further treatment\u2019? The date was given as \u201815 November 1966\u2019?\n\u201cA. That\u2019s right.\"\nDr. Floyd was not in court and did not testify. The foregoing represents plaintiff\u2019s Exceptions Nos. 18, 19 and 20.\nDr. Alex Moffett, a witness for plaintiff, was cross examined over plaintiff\u2019s objection in the following fashion:\n\u201cQ. Did you get a radiologist\u2019s report on that?\n\u201cA. Yes, sir.\n\u201cQ. Do you have it with you?\n\u201cA. Yes.\n\u201cQ. Have you reviewed it yesterday or this morning?\n\u201cA. Yes, I have.\n\u201cQ. Did you look at the x-rays?\n\u201cA. Yes, I did.\n\u201cQ. Do you have an opinion satisfactory to yourself as to what they showed? Objection. Overruled.\n\u201cA. They did not show any evidence or pattern of joint change except for one change that the radiologist noted that he apparently did not consider of any importance.\u201d\nThis is plaintiff\u2019s Exception No. 31.\nPlaintiff attempted to offer in his own behalf a letter written by Dr. Jacobs of the Miller Clinic in Charlotte to the plaintiff purporting to show that Dr. Jacobs advised plaintiff he could recuperate better in New Mexico, Arizona or Mexico because of the sunshine. Defendant\u2019s objection was sustained, and this constitutes plaintiff's Exception No. 24.\nPlaintiff\u2019s exceptions to the admission and exclusion of the foregoing testimony are grouped under one assignment of error, and properly so, since they all relate to a single question of law; namely, whether such evidence violated the Hearsay Rule and was therefore incompetent. Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785.\n\u201cEvidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.\u201d King v. Bynum, 137 N.C. 491, 495, 49 S.E. 955, 956; quoted with approval in Chandler v. Jones, 173 N.C. 427, 92 S.E. 145. \u201cExpressed differently, whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay.\u201d Stansbury, N. C. Evidence, Hearsay, \u00a7 138.\nDefendant\u2019s cross examination of plaintiff concerning Dr. Floyd\u2019s medical report was for the purpose of showing that plaintiff had been injured and disabled in the Wilmington accident and could not claim damages against defendant for that period of disability. Defendant was not merely seeking to establish the fact that Dr. Floyd rendered a medical report. Rather, he was seeking to establish the truth of what the report said and was placing its contents before the jury without introducing it. He was doing indirectly what he could not do directly. The medical report itself was clearly hearsay. Dr. Floyd; was not in court and subject to cross examination. It therefore follows that plaintiff\u2019s Exceptions Nos. 18, 19 and 20 should have been sustained.\nThe cross examination of Dr. Moffett concerning the report of the radiologist is competent. It does not appear that Dr. Moffett was merely reading the report before the jury. Rather, he stated that he had reviewed the report himself and had an opinion satisfactory to himself as to what it showed. Nothing affecting his competency to testify about it appears in the record. Exception No. 31 is overruled.\nPlaintiff is in no position to insist on his Exception No. 24 for the-simple reason that error by the court in defendant\u2019s favor does not entitle plaintiff to similar benefits.\nOver objection, defendant was permitted to question plaintiff as follows:\n\u201cQ. As a matter of fact, your fifth wife was employed in your office at the time this accident occurred, and you complained to her about it [tense wrists], didn\u2019t you?\n\u201cA. I don\u2019t recall. My wife had no routine or anything as to massaging my neck and the upper part of my back and my wrist prior to this accident. She did it every now and then; I think everyone does. It was because I bent over in such a position that my back and neck hurt and that\u2019s the reason she massaged it.\n[Plaintiff\u2019s Exception No. 6.]\n\u201cQ. How long did you stay in Mexico?\n\u201cA. Ten days or two weeks.\n\"Q. And while you were there, you filed for a Mexican divorce from your fifth wife?\n\u201cA. I did not.\n\u201cQ. Your wife was served with papers from a Mexican court, wasn\u2019t she?\n[No answer.]\n\u201cQ. And you got a Mexican divorce, didn\u2019t you?\n[No answer.]\n\"Q. You got a Mexican divorce, did you, Doctor, from this Miss Mary Helen Marshall?\n\u201cA. Not at the time. It had nothing to do with that trip. It was years later that I got that divorce. I got a Mexican divorce, and it was not at Acapulco. It was not during that time. It was not.\n[Plaintiff\u2019s Exception\u2019s Nos. 13, 14 and 15.]\n\u201cQ. Do you drink at all?\n\u201cA. I never have drank enough to affect my work. I\u2019ve never drank to affect my work.\u201d\n[Plaintiff\u2019s Exception No. 21A.] ,\n'After plaintiff testified he filed income tax returns with reference to his earnings, he was asked:\n\u201cQ. Then I\u2019ll ask you if, after the filing of the income tax return, or after you had taken credit for bad debts on the books, when somebody did happen to come by and pay you, you stuck the money in your pocket, didn\u2019t you?\n\u201cA. Not to my knowledge.\u201d\n[Plaintiff\u2019s Exception No. 16.] \u25a0\nMary Helen Marshall, testifying on direct examination as a defense witness, was asked over plaintiff\u2019s objection:\n\u201cQ. What about his bad accounts?\n\u201cA. Well, he usually turned them over to a credit bureau or whatever you want to call it, or collection agency.\n\u201cQ. What about people \u2014 did you keep a list of what he called his bad accounts?\n\u201cA. Well, there was a list there in the office. He usually had an accountant to fill out the things and when the taxes were \u2014 yearly taxes were fixed, I just signed them and I didn't know what was what.\u201d\n[Plaintiff\u2019s Exceptions Nos. 39 and 40.]\nPlaintiff contends the foregoing exceptions, which are grouped for discussion in the brief under his third assignment of error, were irrelevant and immaterial to the issue being tried, were intended as evidence of his bad character, and were very prejudicial.\nThe question and answer embraced in Exception No. 6 was harmless. Plaintiff was asked on cross examination if he had not complained about tenseness in his wrists.to his fifth wife who was employed in his office prior to the accident in suit. The question identifies the wife to which the complaints were allegedly made. Obviously, a man who has had six wives could not be asked if he complained to his wife. The question would be too vague and indefinite.\nExceptions Nos. 13, 14 and' 15 relate to plaintiff\u2019s trip to Mexico shortly after the accident and whether he got a Mexican divorce while there. It is entirely proper for defendant to show, if he can, that plaintiff was not so severely injured that he could not make a pleasure trip to Mexico shortly after the accident. Even so, notwithstanding the wide range permissible, \u201ccross-examination for purposes of impeachment must stay within reason, and cannot be used to bring out purely prejudicial matters. . . .\u201d Stansbury, N. C. Evidence, Witnesses \u00a7 42. Cross examination may not be used to take unfair advantage nor to discredit a witness by questions \u201ctending merely to prejudice him in the eyes of the jury without rational basis as affecting his credibility.\u201d Foxman v. Hanes, 218 N.C. 722, 725, 12 S.E. 2d 258, 260. We think the questions concerning the Mexican divorce come within this category as do those questions concerning plaintiff\u2019s income tax returns and method of handling his delinquent accounts. The inquiry about plaintiff\u2019s drinking habits was permissible as bearing upon the cause of his alleged loss of earnings.\nExceptions Nos. 39 and 40 are sustained for the reason that plaintiff\u2019s handling of his bad accounts, even if a proper subject for cross examination of plaintiff, is a collateral matter. His answer was conclusive and cannot be contradicted by other testimony. State v. Brown, 266 N.C. 55, 145 S.E. 2d 297, and cases there cited.\nDefendant was permitted to elicit from plaintiff on cross examination an admission that plaintiff rented a fishing boat for eleven days immediately following the accident. Plaintiff\u2019s Exceptions Nos. 9, 10 and 11 assigned this as error for the reason that property damage was not included in plaintiff\u2019s suit. These exceptions are without merit and are overruled. The stated purpose of the evidence was to show lack of injury and to show that plaintiff was able to carry on his usual fishing pursuits.\nPlaintiff\u2019s Exceptions Nos. 36 and 37 are addressed to the action of the court in permitting defendant to elicit from his witness Cromer Spencer testimony to the effect that defendant\u2019s boat was traveling at a speed of 3, 4, 5 or 10 miles per hour. \u201cCouldn\u2019t have been over ten.\u201d Again, this evidence was not offered to show lack of negligence but as bearing upon the lack of force upon impact and to minimize the injuries likely to ensue therefrom. Its admission, was harmless and plaintiff\u2019s exceptions are overruled.\nPlaintiff excepts to the admission of evidence concerning a subsequent accident in which plaintiff was involved, contending it was improper to admit evidence of a rear-end auto collision on the highway near Wilmington because it was in no way similar to the boating accident and because there was no competent evidence that the injuries plaintiff received as a result of the collision related in any way to the injuries received in the case at bar. This is plaintiff\u2019s Exception No. 17.\nIn view of plaintiff\u2019s contention that he has sustained permanent injuries from the boating accident, defendant may show by competent evidence, if he can, that plaintiff was involved in a subsequent accident resulting in injury and disability. Defendant may further show the nature and extent of such injury and disability by the testimony or deposition of Dr. Floyd or by any other competent evidence. Plaintiff\u2019s Exception No. 17 is well taken on the present record because no competent medical evidence was offered to show what injuries plaintiff sustained in the Wilmington accident or what disabilities he suffered by reason thereof. Defendant will have an opportunity to mend his licks at the next trial.\nPlaintiff\u2019s Exceptions Nos. 1, 2, 3, 4, 7, 8, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35 and 38 relate to medical evidence, some allegedly too remote, some too conjectural, and some rendered by a non-expert. These exceptions are all overruled. Evidence of pre-existing injuries, diseases or infirmities is competent in diminution of damages allegedly attributable to the injury in suit if such prior conditions bear a causal relation to the disabling injuries for which damages are sought. Plaintiff\u2019s medical evidence, and his own testimony as well, tends to show a history of pain due to arthritis, rheumatism, teno-synovitis and fibrositis. His complaints since the boat accident relate to pain in his fingers, wrists, shoulder, neck and back \u2014 conditions which could result from arthritis, rheumatism, tenosynovitis or \u25a0 fibrositis. Furthermore, the testimony of plaintiff's former wife concerning his physical condition and complaints prior to the accident was competent. \u201cA nonexpert witness may testify from his knowledge and observation of the physical condition of a person as to such person\u2019s ability to engage in work or follow a gainful occupation. Such witness may also testify as to a person\u2019s health, including an opinion about his present state of health and ability to work.\u201d 3 Strong\u2019s N. C. Index 2d, Evidence \u00a7 44. See also Gasque v. Asheville, 207 N.C. 821, 178 S.E. 848.\nDefendant was entitled to cross examine plaintiff concerning a disability, benefit of $21 monthly received by plaintiff from the U. S. Air Force on account of a service-connected disability to ascertain the nature of such disability and whether or not it contributed to his alleged disabilities for which damages are sought in this case.\nWe consider next the effect of a judgment by default and inquiry. \u201cA judgment by default and inquiry is an interlocutory judgment which transfers the cause by operation of law to the Superior Court for further hearing in term. It has been held that a judgment by default and inquiry determines the right of plaintiff to recover at least nominal damages and costs and precludes defendant from offering evidence on the inquiry to show that plaintiff has no right of action.\u201d 5 Strong\u2019s N. C. Index 2d, Judgments \u00a7 15. See also Rich v. Railroad, 244 N.C. 175, 92 S.E. 2d 768; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179.\nThe most defendant can accomplish by his evidence on the inquiry is to reduce the recovery to nominal damages. Garrard v. Dollar, 49 N.C. 175. This rule was recognized in this case on a former appeal [Potts v. Howser, 267 N.C. 484, 494, 148 S.E. 2d 836, 844] where Parker, C.J., speaking for the Court, said:\n\u201cIt is true that defendant\u2019s answer has been stricken, and that plaintiff\u2019s cause of action and right to recover at least nominal damages have been established. However, defendant is entitled to a trial on inquiry before a jury on the issue of damages. G.S. 1-212; Wilson v. Chandler, 238 N.C. 401, 78 S.E. 2d 155. In the trial of the question of damages, the defaulting defendant has the right to be heard and participate. He may, if he can, reduce the amount of damages to nominal damages. 30A Am. Jur., Judgments, \u00a7 219.\u201d\n\u201cNominal damages, consisting of some trifling amount, are those recoverable where some legal right has been invaded but no actual loss or substantial injury has been sustained. Nominal damages are awarded in recognition of the right and of the technical injury resulting from its violation. They have been described as \u2018a peg on which to hang the costs.\u2019 Hutton v. Cook, 173 N.C. 496, 92 S.E. 355; 15 Am. Jur. 390. \u2018What is meant by nominal damages is a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage.\u2019 \u201d Hairston v. Greyhound Corp., 220 N.C. 642, 644, 18 S.E. 2d 166, 168.\nPlaintiff\u2019s right to recover at least nominal damages and costs was a substantive right and it was incumbent upon the court to instruct the jury with reference to it even in the absence of a special request. The jury\u2019s verdict was reached under a misapprehension of the law.\nPlaintiff is entitled to a\nNew trial.", "type": "majority", "author": "HusKiNS, J." } ], "attorneys": [ "McElwee & Hall by Jerone C'. Herring and John E. Hall, Attorneys for plaintiff appellant.", "Smathers & Hufstader by James C. Smothers; Larry W. Pitts, Attorneys for defendant appellee." ], "corrections": "", "head_matter": "DR. S. J. POTTS, Plaintiff, v. JAMES E. HOWSER, t/a HOWSER BOAT COMPANY, Defendant and JACK R. HARRIS, Additional Defendant.\n(Filed 14 June 1968.)\n1. Damages \u00a7 3\u2014\nWhere there is evidence from which the jury could find that plaintiff\u2019s diseased condition was active prior to the accident and that its severity was increased and aggravated as a result of defendant\u2019s negligence, defendant is liable only to the extent that his wrongful act proximately and naturally aggravated plaintiff\u2019s condition.\n2. Damages \u00a7 16\u2014\nEvidence tending to show that the injuries received by plaintiff in the accident aggravated plaintiff\u2019s pre-existing infirmity of fibrositis is a substantial feature of the case, and the court should have instructed the jury as to the legal significance of defendant\u2019s negligent acts which aggravated the pre-existing condition, G.S. 1-180, a general instruction on the measure of damages being insufficient.\n3. Appeal and Error \u00a7 24\u2014\nExceptions relating to a single question of law are properly grouped under one assignment of error.\n4. Evidence \u00a7\u00a7 33, 50\u2014\nTestimony elicited from a witness other than the author of a medical report is incompetent as hearsay to prove the truth of the contents of the report.\n5. Same\u2014\nTestimony elicited from a physician on cross-examination concerning the results of a radiologist\u2019s report is held competent when it appears that the physician was not reading the report before the jury but was merely stating that he had reviewed the report and had an opinion satisfactory to himself as to what it showed.\n6. Appeal and Error \u00a7 47\u2014\nError by the court in defendant\u2019s favor does not entitle plaintiff to similar benefits.\n7. Witness \u00a7 8\u2014\nPlaintiff in a personal injury action, who had been married six times, could not be prejudiced by question on cross-examination as to whether he had complained to his fifth wife about tenseness in his wrist prior to the accident.\n8. Same\u2014\nCross-examination may not be used to take unfair advantage or to discredit a witness by questions tending merely to prejudice him in the eyes of the jury without a rational basis affecting his credibility.\n9. Same; Damages \u00a7 IS\u2014\nIn an inquiry to determine damages for personal injuries sustained by plaintiff as a result of defendant\u2019s negligence in operating a motor boat, it is incompetent to ask the plaintiff on cross-examination if he got a Mexican divorce from his fifth wife while on a trip to that country shortly after the accident, or if he failed to report on his income tax return collections from delinquent accounts.\n10. Damages \u00a7 13\u2014\nIn an inquiry to determine damages for personal injuries sustained by \u25a0 plaintiff as a result of defendant\u2019s negligence in operating a motor boat, it is competent to ask plaintiff on cross-examination (1) if lie took \u00a1a pleasure trip to Mexico shortly after the accident, (2) if he drank at all, (3) if plaintiff rented a fishing boat for eleven days immediately following the accident, (4) if plaintiff was involved in a subsequent accident which resulted in injury and disability, (5) if plaintiff suffered from a service-connected disability.\n11. Same\u2014\nEvidence of pre-existing injuries, diseases or infirmities is competent in diminution of damages allegedly attributable to the injury in suit if such prior conditions bear a causal relation to the disabling injuries for which damages are sought.\n12. Evidence \u00a7 44\u2014\nTestimony of plaintiff\u2019s former wife concerning plaintiff\u2019s physical condition and his complaints as to matters of health prior to an accident is competent.\n13. Judgments \u00a7 15\u2014\nPlaintiff\u2019s right to recover at least nominal damages and costs on a judgment by default and inquiry is a substantive right, and it is incumbent upon the court to instruct the jury with reference thereto even in the absence of a special request.\n14. Same\u2014\nOn a determination of damages under a judgment by default and inquiry, the most the defendant can accomplish by his evidence on the inquiry is to reduce the recovery to nominal damages.\n15. Damages \u00a7 1\u2014\nWhat is meant by nominal damages is a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage.\nAppeal by plaintiff from Gambill, \u00ab/., at the 25 September 1967 Mixed Session, AlexaNdee Superior Court.\nCivil action to recover damages for personal injuries sustained by reason of original defendant\u2019s alleged negligent operation of a motor boat.\nThis case was before the Court on a former appeal by the original defendant. It is reported in 267 N.C. 484, 148 S.E. 2d 836. As a result of that appeal the additional defendant Jack R. Harris was eliminated as a party; judgment by default and inquiry against original defendant James E. Howser was upheld; and the case was returned to the Superior Court of Alexander County for inquiry before a jury on the issue of damages.\nAt the 25 September 1967 Mixed Session a jury was duly empaneled to make the inquiry.\nPlaintiff testified that he practiced dentistry in Taylorsville, Alexander County, for ten years, returning to his home county of Columbus in 1964, where he has since followed his profession.\nHe stated that on April 11, 1962, at about 7:15 p.m., he was injured in a boat accident just off Taylorsville Beach when defendant\u2019s cabin cruiser struck his boat, knocking him. into the water. He came up under the cabin cruiser twice trying to surface. His hand hit the propellor or some part of the boat. His left wrist, little finger on left hand, and his neck were injured. He went to Alexander County Hospital the following morning and saw Dr. Alex Moffett, the chief resident surgeon. He was sore, bruised, and had a pain in his neck and left wrist.\nAfter treatment for several months by Dr. Moffett, he went to Miller Clinic in Charlotte and saw Dr. Jacobs who treated him \u201coff and on\u201d for two years. The pain continued in his right shoulder and radiated down the right side of his back and \u201cof course into my hands too.\u201d Since that time he has had a limited motion in his neck when turning his head to the right. He had no such limitation prior to the accident.\nAt the time of his injury his earnings averaged $75 to $100 per day for five and a half days per week. He lost full time for four months and half time for twelve to eighteen months, all due to pain in his neck and back and, at times, a limitation of motion in the little finger of his left hand.\nHe spent $1,221.50 for medicine and drugs and was still under the care of a doctor at the time of the trial.\nOn cross examination, plaintiff admitted over objection that he was drawing a disability benefit of $21 per month from the U. S. Air Force for a \u201csuspected stomach ulcer\u201d; that prior to the boat accident he consulted Dr. Jacobs \u201cto find out what was wrong with my hands.\u201d He stated that he had experienced trouble with his right wrist since 1955 and that Dr. Moffett had x-rayed his spine or wrist several years ago.\nPlaintiff further admitted that he rented a boat and motor for fishing purposes for eleven days immediately following the accident in suit, using a rod and reel on those occasions.\nOver objection, plaintiff said he spent ten days in Acapulco, Mexico, following this accident because Dr. Jacobs thought he could recuperate better in the sunshine.\nPlaintiff was also cross examined, over objection, concerning a rear-end auto collision near Wilmington some time following the boat accident and stated that he authorized Dr. Floyd to render a medical report.\nDr. Alex Moffett testified that plaintiff came to his office on April 12, 1962, and made a statement to his secretary, who x-rayed plaintiff. The history given was that of an accident \u201cwhile fishing in my boat ... I was rammed broadside and knocked from my boat into the lake . . . and sustained injuries to left wrist and ring finger and upon arising this morning felt as if was developing a cold and had soreness in wrist.\u201d\nDr. Moffett personally saw plaintiff on May 28, 1962. At that time plaintiff stated that ever since his accident on April 11 he had felt a burning type pain in the left shoulder blade region and in the mornings he had pain lower down in his back on the right side. \u201cHe told me his left wrist and ring finger had recovered completely. . . .\u201d Dr. Moffett continued, \u201cIn reviewing his past history he has had pain . . . thought to be due to a cervical disc disease. That\u2019s a disc disease in the neck. On one occasion, he had tenosynovitis, that\u2019s a type of rheumatism in his wrist, and I stated that I believe that this man has a tendency toward fibrositis and that the accident, with the exposure to cold water and possibly also with muscular skeletal strain, predisposed to his present fibrositis. Fibrositis is a general term that we use to cover pain in the muscles and about the joints, and it covers such things as a crick in the neck and lumbago and a catch in the back. In this case, since he was still having this pain in his back, I thought that this was another flare-up of rheumatism in and about the muscles and I thought it had been aggravated by his accident. . . . The next time I saw him professionally was January 17, 1963, at which time he was having pain in his neck, right hip and right wrist. Dr. Jacobs was treating him at the time and he came by my office after having had a treatment from Dr. Jacobs that same day. He was having a good deal of pain at the time in the wrist. I put a splint on his wrist and advised him to rest and elevate his wrist and continue the treatment that Dr. Jacobs had prescribed. ... I thought that this was another flare-up of his fibrositis and also connected with this condition in his neck. I believe they frequently go together. I have an opinion satisfactory to myself that the injuries that I have just described could cause some permanent effects.\u201d\nDr. Moffett further stated, in answer to a hypothetical question on cross examination, that being immersed in cold water might have produced the conditions which he found on the May 28 examination of the plaintiff; or, the findings on that date could have been a normal flare-up of his condition prior to the accident.\nDefendant\u2019s evidence: Cromer Spencer testified that he saw the accident; that plaintiff was in the water three or four minutes; that plaintiff came to the shore on defendant\u2019s boat, put on dry clothes, and stayed at Spencer\u2019s house for a period of thirty minutes to two hours during which time he made no complaints about being hurt; that the water temperature was 50 or 60 degrees. This witness further testified that plaintiff rented a boat from him while his own was being repaired and continued to fish during the days immediately following the accident.\nMary Helen Marshall testified that she worked for the plaintiff as a dental assistant for four years before her marriage to him and four years afterwards; that he complained of his wrists, shoulder and back before and after the accident; that he saw various doctors about his ailments; that his complaints before and after the accident were about the same; that on the night of the accident she took him dry clothes to put on and doesn\u2019t recall any complaints of pain at that time; that plaintiff divorced her.\nDefendant James Howser testified that after the accident he brought plaintiff ashore and saw him an hour later at the boat house; that plaintiff made no mention of being hurt.\nFollowing the charge, the case was submitted to the jury upon the following issue which was answered as shown:\n\u201c1. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: None.\u201d\nJudgment was signed accordingly, and plaintiff appealed.\nMcElwee & Hall by Jerone C'. Herring and John E. Hall, Attorneys for plaintiff appellant.\nSmathers & Hufstader by James C. Smothers; Larry W. Pitts, Attorneys for defendant appellee." }, "file_name": "0049-01", "first_page_order": 67, "last_page_order": 79 }