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Sterling v. Gil Soucy Trucking9/18/2001
of the defendants, while cross-examining Cathy Sterling (Sterling) about her testimony regarding Christopher's post-accident behavior, read from Christopher's School records. The information contained in these records tended to contradict Sterling's testimony given on direct. Plaintiffs argue on appeal that these School records constitute inadmissible hearsay, even if used for impeachment purposes during the cross-examination of a witness. I agree. Defendants were challenging the veracity of Sterling's testimony using the School records. Defendants, therefore, were offering the School records as the truth of the matter and, thus, these records were properly used for impeachment purposes only if admissible under some exception to the hearsay rule. Defendants, however, made no effort to qualify the records under any recognized hearsay exception, and plaintiffs failed to object at trial to the use of these records on the grounds they were inadmissible hearsay. Accordingly, plaintiffs cannot now do so on appeal. See State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) ("the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character").
II.
Defendants Soucy Trucking and Caron's appeal raises an issue not yet determined by our appellate courts: whether a plaintiff may settle with fewer than all of the defendants after the liability of multiple defendants has been established by the trial court as joint and several. Section 1B-4(2) of the North Carolina General Statutes provides that if the plaintiff gives, in "good faith," a release to one of two or more joint tort-feasors, this release "discharges the tort-feasor . . . from all liability for contribution to any other tort-feasor." N.C.G.S. § 1B-4(2) (1999). On the other hand, section 1B-3(f) provides that once a judgment is entered establishing the joint and several liability of multiple defendants, that judgment "shall be binding as among such defendants in determining their right to contribution." N.C.G.S. § 1B-3(f) (1999). If section 1B-4(2) is read to include post-judgment releases, the release of one of the joint tort-feasors in exchange for his pro rata share of the initial judgment could result in the remaining joint tort-feasors being liable for a larger contribution in the event of a new trial. For example: a judgment is entered against three defendants for $100,000.00 based on a joint and several liability jury verdict. The plaintiff appeals the case and on appeal, settles with defendant A for its pro rata share of the $100,000.00 verdict and provides defendant A with a release. Subsequently, the appellate court orders a new trial on the issue of damages and on retrial, the jury awards plaintiff $300,000.00 against defendants B and C. Are defendants B and C entitled to seek contribution from defendant A for $100,000.00, a pro rata share of the new verdict, on the grounds their joint and several liability was established in the first judgment? One reading of section 1B-4(2) would suggest defendants B and C are not entitled to any contribution because the release of defendant A discharges his liability for any contribution to defendants B and C. Such a reading, however, directly conflicts with section 1B-3(f), which sets contribution rights once joint and several liability is established. Accordingly, section 1B-4(2) must be read to apply to only pre-judgment settlements, see Wheeler v. Denton, 9 N.C. App. 167, 170-71, 175 S.E.2d 769, 771-72 (1970) (setting out contribution rights of joint and several defendants where plaintiff settled with one defendant prior to trial), as the entry of a judgment against two or more joint tort-feasors necessarily fixes a defendant's
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