Asa Douglas HALL
v.
Malcolm Howell COPLON.
No. 8621SC1153.
Court of Appeals of North Carolina.
May 5, 1987.*197 Petree, Stockton & Robinson by G. Gray Wilson, and Horton and Kummer by Hamilton Horton, Winston-Salem, for defendant-appellant.
Victor M. Lefkowitz, Winston-Salem, for plaintiff-appellee.
ARNOLD, Judge.
Both plaintiff and defendant attack various aspects of the trial held in this matter. Assignments of error by both parties have merit and demand that we reverse the judgment of the trial court and remand the case for a new trial.
As a cross-assignment of error, plaintiff contends that "the trial judge invaded the province of the jury by granting a directed verdict in favor of the defendant on the issue of the defendant's shooting the plaintiff in the back."
A motion for a directed verdict presents the question whether the evidence, when considered in the light most favorable to the nonmoving party, is sufficient for submission to the jury. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).
Deadly force may be employed to repel a felonious assault where such force reasonably appears to be necessary to prevent death or great bodily harm. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986). The reasonableness of the apprehension of death or great bodily harm must be determined by the jury on the basis of all the facts and circumstances as they appeared to the party at the time. State v. Clay, 297 N.C. 555, 256 S.E.2d 176 (1979).
The reasonableness of defendant's use of deadly force in shooting plaintiff in the back is a question that should have been submitted to the jury. Therefore, the trial court erred in granting defendant's motion for a directed verdict on that issue.
We are not persuaded by plaintiff's remaining cross-assignments of error.
Defendant assigns error to the trial court's refusal to instruct the jury that provocation may be considered in mitigation of damages.
Although provocation is not a defense to an action for assault and battery, it may be considered in mitigation of damages. Lail v. Woods, 36 N.C.App. 590, 244 S.E.2d 500, disc. rev. denied, 295 N.C. 550, 248 S.E.2d 727 (1978). If the provocation is great, the damages may be reduced to a nominal sum. Id.
In the case sub judice, the breaking and entering into defendant's home and defendant's struggle with plaintiff and *198 Blackburn provide ample evidence of provocation. Therefore, we hold that the trial court erred in refusing to instruct the jury that provocation may be considered in mitigating plaintiff's damages.
Defendant also contends that the trial court erred in failing to segregate the medical expenses attributable to plaintiff's hand injuries from the expenses attributable to plaintiff's back injury.
Since the trial judge directed a verdict on the issue of defendant's shooting plaintiff in the back, he instructed the jury that plaintiff's recovery for medical expenses would be limited to treatment for injuries to defendant's hands and head. However, plaintiff's evidence of medical expenses did not break down those expenses with respect to his specific injuries.
We briefly note that should the jury determine on retrial that defendant is not liable for all of plaintiff's injuries, evidence allocating the medical expenses to each injury suffered would permit the jury to award damages in line with defendant's liability.
Defendant next contends that the trial court erred in admitting "plaintiff's self-serving testimony concerning his motive for breaking into defendant's home and other testimony by plaintiff and others concerning the events which transpired there and other matters because this evidence was irrelevant and incompetent hearsay which substantially prejudiced defendant and denied him a fair trial." We do not agree.
The evidence defendant complains of is primarily testimony concerning the events leading up to the break-in and plaintiff's and defendant's relationships with Wall and Holland. The trial judge gave a limiting instruction to the jury that the testimony could be considered only for the limited purpose of "understanding why [plaintiff] thereafter engaged in whatever conduct he engaged in."
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." G.S. 8C-1, Rule 801(c). If the statement is offered for any other purpose, it is admissible. Livermon v. Bridgett, 77 N.C.App. 533, 335 S.E.2d 753, (1985) disc. rev. denied, 315 N.C. 391, 338 S.E.2d 880 (1986).
In the present case, the evidence was not offered as proof of the matters asserted. The testimony helped to explain plaintiff's conduct during and after the break-in and was admissible for that purpose. Thus, the trial court did not err in admitting the testimony.
Defendant further contends that the trial court erred in admitting a written statement "on the grounds that [it] was privileged work product containing hearsay which was incompetent, irrelevant and prejudicial."
The statement, which detailed defendant's relationship with Wall and Holland, was dated 16 May 1983 and entitled "Statement by Malcolm H. Coplon (Addendum to statement of May 13, 1983)." At trial, defendant was represented by two attorneys, G. Gray Wilson and Hamilton Horton. Wilson informed the court that Horton inadvertently gave the statement to the police who were investigating the incident. Wilson also informed the court that defendant did not prepare the statement. He further stated that the statement was prepared by Horton. However, defendant admitted that he personally prepared the statement. We hold that the statement is not privileged work product and was properly admitted as relevant evidence.
We need not address defendant's remaining assignments of error inasmuch as we are remanding the case for a new trial.
Reversed and remanded for a new trial.
MARTIN and GREENE, JJ., concur.