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Edwards v. Cerro6/4/2002
. Ezelle, asked the jury "had anybody heard anything as far as was his (plaintiff's) medical bills covered by insurance." Another juror, Mr. Piantanida responded, "I don't feel like that's germane to the case as far as whether he has insurance or doesn't have insurance. It's whether he's entitled to recover or not." All of the jurors testified that they had a brief discussion during deliberations about whether the parties were covered by some sort of insurance. According to the jurors' testimony, the word "insurance" was mentioned between one and four times, and the jurors did not discuss it again.
Here, neither the parties nor the witnesses at trial mentioned insurance, and we will not require a new trial under these circumstances. See Fincher, 266 N.C. 64, 145 S.E.2d 316. Insurance was briefly discussed during a self-initiated conversation in jury deliberations. This conversation by the jurors did not amount to misconduct and there was no evidence that it affected or biased their decisions. The trial court acted within its discretion when it denied Ham Farms' motion for judgment notwithstanding the verdict and for a new trial on this basis. See Medlin, 139 N.C. App. 534, 534 S.E.2d 622. We find no abuse of discretion.
In its third assignment of error, Ham Farms contends that the trial court improperly answered the issue of negligence in favor of the plaintiff, "thereby precluding submission of the negligence issue to the jury." Ham Farms admitted in its Answer that Mr. Cerro was an employee of Ham Farms and was operating the fork lift on the night in question with the consent and knowledge of Ham Farms. Mr. Cerro did not file any separate pleadings with the court, and the Answer appearing in the record purports to be on behalf of both defendants. As an employee and agent of Ham Farms operating the forklift "in the course of his employment with Ham Farms," Mr. Cerro's negligence is imputed to Ham Farms, his employer. See King v. Motley, 233 N.C. 42, 45, 62 S.E.2d 540, 543 (1950); Willoughby v. Wilkins, 65 N.C. App. 626, 633, 310 S.E.2d 90, 95 (1983), disc. rev. denied, 310 N.C. 631, 315 S.E.2d 698 (1984).
It is undisputed that the interrogatories provided in the Record on Appeal were not answered as ordered by the trial court. Rule 37(b) and (d) of the North Carolina Rule of Civil Procedure (2001) clearly state that among the sanctions available for such failure are that certain matters "shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order." Thus, the court was specifically authorized to rule that the issue of negligence was "established" in accordance with plaintiff's claim. Here, where the defenses to negligence were not asserted separately by the two defendants, and where negligence of the employee (Cerro) was, once established, imputed to Ham Farms, the liability of Ham Farms necessarily followed. We hold that under these circumstances this sanction was not improper.
Affirmed.
Judges WYNN and THOMAS concur.
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