Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc.

345 S.E.2d 453, 82 N.C. App. 21, 1986 N.C. App. LEXIS 2400
CourtCourt of Appeals of North Carolina
DecidedJuly 15, 1986
DocketNo. 8526SC772
StatusPublished
Cited by4 cases

This text of 345 S.E.2d 453 (Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 345 S.E.2d 453, 82 N.C. App. 21, 1986 N.C. App. LEXIS 2400 (N.C. Ct. App. 1986).

Opinions

PHILLIPS, Judge.

The only questions presented by defendant’s appeal are whether the court erred in receiving into evidence two exhibits offered by the plaintiff and in ruling that the evidence is sufficient to warrant and support the verdict. In our opinion the court erred in neither respect. As to the sufficiency of the evidence, defendant’s contentions that negligence and proximate cause have not been proven require no discussion, because when this case was here before, Southern Watch Supply Co. v. Regal Chrysler-Plymouth, 69 N.C. App. 164, 316 S.E. 2d 318, disc. rev. denied, 312 N.C. 496, 322 S.E. 2d 560 (1984), we held that plaintiffs forecast of evidence on the negligence and proximate cause issues raised issues of fact for a jury to determine and substantially the same evidence was presented at trial. Johnson v. Southern Railway Co., 257 N.C. 712, 127 S.E. 2d 521 (1962). Even if those issues had not been ruled on earlier it is clear to us that the evidence above stated tends to show that defendant was negligent and that plaintiffs loss proximately resulted therefrom. Defendant’s contention that the verdict as to plaintiffs damages is unsupported by evidence — an issue not raised by the former appeal — will be discussed following our ruling on the admissibility of Plaintiffs Exhibit 7, which concerns the value of the stolen jewelry.

The first exhibit that defendant contends was erroneously received into evidence, Plaintiffs Exhibit 2, consists of the first two pages of the 49-page official record of the Hickory Police Department’s investigation of the jewelry theft here involved. The two pages, entitled Incident/Investigation Report and dated 2-22-80, [26]*26state that at 11:29 a.m. a report was received from Paul Yandle that his Chrysler automobile parked in the Union Square East Mall parking lot had been broken and entered a few minutes earlier and some jewelry stolen therefrom. In addition to data about Yandle, his employer, the car, the place, and the missing articles, the report states that it was submitted by Officer S. L. Rhyne at 4:30 p.m. that day and that:

On 2-22-80 at 1130 hours Officer Rhyne met with Mr. Paul Yandle at Union Square East Mall parking lot in reference to a breaking and entering of vehicle and larceny from vehicle. Mr. Yandle advised this officer that he parked his vehicle at 1100 hours 2-22-80 in the East Lot of Union Square. At [about] 1120 hours Mr. Yandle stated that he returned to his vehicle to get a sample case out of his trunk. Mr. Yandle advised when he opened the trunk of the vehicle that (4) four sample jewelry cases of assorted jewelry (see itemized list) were missing. Missing were (1) one blue case and (3) brown cases all containing jewelry. Value stolen is listed at $57,338.86 as of Fall 1979 price list.
H.P.D. Evidence Technicians was (sic) called to the scene to process evidence as was (sic) Detectives Wiles and Hunt.
There are no suspects at this time.
Mr. Yandle advised that the vehicle trunk has an alarm, however, the alarm was not set off at the time of the incident.

The exhibit was received into evidence during the testimony of Hickory Police Detective Larry Wiles, who met Officer Rhyne and Yandle in the mall parking lot immediately after the theft was reported and investigated the case for several weeks thereafter. Defendant contends that the report was inadmissible because Officer Wiles did not make it and because it contained hearsay upon hearsay. We disagree for several reasons. First, though Officer Wiles did not make the report, he was there when Yandle was interviewed, the car was examined, the burglar alarm system tested, and the sample case that Yandle had left was examined, and testified: “What is on that report is exactly what I heard.” Second, the exhibit did not violate the hearsay rule because it was not received as evidence that the statements contained therein [27]*27were true. G.S. 8C-1, Rule 801, N.C. Evidence Code. It was received, so the court instructed the jury, “for the limited purpose of simply showing that a report was made,” which is an appropriate purpose under the law, not forbidden by the hearsay rule. For our Supreme Court has said: “The hearsay rule does not apply to testimony that a particular statement was made by some person other than the witness when the fact sought to be established is the making of the statement itself, as distinguished from the truth of the matter so stated.” Wilson v. Hartford Accident and Indemnity Co., 272 N.C. 183, 188, 158 S.E. 2d 1, 5 (1967). Furthermore, everything of consequence stated in the report was established by other testimony that defendant did not object to. That Yandle parked his car in the parking lot around 11 o’clock that morning and it then had four sample jewelry cases in the trunk is indicated by Mrs. White’s testimony that she saw the four cases in the car trunk between 11 o’clock and 11:15. That the car was thereafter broken into and the cases stolen from it is indicated by Mrs. White’s testimony that she saw a stranger hastily open the car trunk and remove one of the cases between 11 o’clock and 11:15; by the testimony of Detective Wiles that the cases were not there when he examined the car at 11:30; and by the testimony of plaintiffs general manager that “four cases had been stolen.” Thus, even if the exhibit was incompetent, and we do not believe it was, its receipt cannot be regarded as prejudicial. Wilson County Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970). Finally, as has been ruled by our Supreme Court under similar circumstances, Yandle’s statement to the officer was also admissible as substantive evidence on other grounds. In State v. Odom, 316 N.C. 306, 341 S.E. 2d 332 (1986), the description of an abduction that was related to a police officer by an eyewitness ten minutes after he saw it was received as substantive evidence as a present sense impression exception to the hearsay rule, as provided in N.C. Evidence Rule 803(1), though the witness had died during the interim. In this case Yandle’s statement concerning his detection of the theft of the jewelry cases was made within two or three minutes of the discovery. Too, evidence having been offered that Yandle was so upset by the theft that he was scarcely able to talk for a long while and even became ill, his statement to the officers could have been received also as substantive evidence under the excited utterance exception to the hearsay rule, as provided in Rule 803(2).

[28]*28The other exhibit that defendant objected to — Plaintiff s Exhibit 7 — purports to list all the articles of jewelry that were stolen and their wholesale prices, which amount to $59,488.31 altogether. The objection has no legal basis and other evidence to the same effect was introduced without objection in any event. The basis first stated for the objection was that the list was made “after the incident and it is clearly marked 2/25/80.” This is no basis at all, of course, since a list of the stolen articles could not have been made before the theft occurred, and no argument to the contrary is made in the brief. The basis next stated for the objection — after plaintiffs counsel stated the exhibit was being introduced only to illustrate the testimony of plaintiffs general manager —was that “it is not relevant.” Yet the exhibit purports to identify each piece of jewelry that was stolen and state its wholesale value or price, information that was not only relevant but material to the issues being tried.

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Bluebook (online)
345 S.E.2d 453, 82 N.C. App. 21, 1986 N.C. App. LEXIS 2400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-watch-supply-co-v-regal-chrysler-plymouth-inc-ncctapp-1986.