Boyd v. Williams

• Decision Date: 19 September 1934
• Docket Number: 667.
• Citation: 175 S.E. 832,207 N.C. 30
• Parties: BOYD v. WILLIAMS.
• Court: North Carolina Supreme Court

175 S.E. 832

207 N.C. 30

BOYD v. WILLIAMS.

No. 667.

Supreme Court of North Carolina

September 19, 1934

Appeal from Superior Court, Guilford County; Clement, Judge.

Civil action by Beatrice Boyd against C. F. Williams, administrator of the estate of W. V. Boyd, deceased, to recover damages for personal injury. From a judgment of the superior court affirming a judgment of the county court for plaintiff defendant appeals.

Error. The plaintiff is the wife of the deceased, W. V. Boyd, and was injured on March 16, 1934. Certain medical testimony was offered tending to show the extent of the injuries sustained by plaintiff, but the only evidence offered as to what actually occurred was contained in her testimony. She said "About the 16th I came to High Point with Mr. Boyd. We came in Mr. Boyd's car. * * * We left High Point about five or five-thirty the same day. * * * We stopped outside of Statesville * * * long enough to get something to eat. We started from Statesville to go to Hickory. We did not get to Hickory. * * * Mr. Boyd was driving the car. I did not drive it any at all. I could not drive a car. * * * At or just before we got to the place of the wreck, there was kind of a winding road. We were coming down grade, and there was a short curve. I don't guess you could see it over one hundred and twenty-five feet * * * before you get to it. * * * We came down grade and started the curve and hit the center of the curve and couldn't make it. * * * I don't think you could hardly see a car coming until you got on the curve. * * * As to what happened in the wreck, it happened so quick I don't know. The next thing I knew was when they were picking me up to take me to the hospital. I was not conscious all the time. * * * All of my body except my head was under the car. I don't know where Mr. Boyd was. He was killed. He lived about twenty-four hours I think."

While the plaintiff was testifying in her own behalf, she was asked the following questions: (a) "At what rate of speed was he driving, would you say, just before the wreck? Ans. Between forty-five or fifty miles." (b) "What do you mean by center of the curve? Ans. Well, he hit about the center of the curve, he couldn't make the curve." (c) "When you started in the curve, what rate of speed would you say he was running? Ans. Forty-five or fifty miles an hour." (d) "Did you make a statement to Mr. Boyd about the rate of speed at which he was driving? Ans. Yes."

The defendant objected to all the foregoing evidence upon the ground that, as she was suing the estate of her deceased husband for damages, she was an interested witness and disqualified by C. S. § 1795, to testify as to transactions and communications with her husband. The evidence was admitted at the trial in the county court and a verdict rendered in favor of plaintiff in the sum of $5,481. The defendant appealed to the superior court, assigning as error the admission of the testimony of the wife as heretofore indicated. The judge of the superior court overruled the exceptions and affirmed the judgment of the county court. Whereupon the defendant appealed.

Dalton & Pickens, of High Point, for appellant.

Walser & Casey, of High Point, for appellee.

BROGDEN Justice.

A wife, living with her husband, is riding with him along the highway, in a car owned, controlled, and driven by the husband. The car fails to make a curve, and is apparently wrecked or turned over, killing the husband and seriously injuring the wife. She sues the estate of the deceased husband for damages, and is allowed to testify as to violations of the statute regulating the operation of automobiles, and that she made a statement to her deceased husband at the time "about the rate of speed at which he was driving."

These facts produce two questions of law:

(1) Does C. S. § 1795, apply to actions in tort, or is the statute confined to actions on contract?

(2) Does the testimony of the wife constitute a transaction or a communication with her deceased husband within the contemplation of said statute?

No case has been called to our attention in this jurisdiction deciding the question as to whether C. S. § 1795, applies to tort actions. However, no sound reason occurs to the court for limiting the application of the statute...