Brown v. Adams

• Decision Date: 07 November 1917
• Docket Number: (No. 188.)
• Citation: 93 S.E. 989
• Parties: BROWN. v. ADAMS.
• Court: North Carolina Supreme Court

93 S.E. 989

BROWN.

v.ADAMS.

(No. 188.)

Supreme Court of North Carolina.

Nov. 7, 1917.

Clark, C. J., dissenting.

Appeal from Superior Court, Pitt County; Harding, Judge.

Action by Maggie L. Brown, individuallyand as administratrix of Denie T. Brown, against J. E. S. Adams. On the death of defendant, Mary Adams, his executrix, was substituted as defendant. From a judgment for plaintiff, defendant appeals. New trial ordered for error.

W. F. Evans, of Raleigh, and Harding & Pierce, of Greenville, for appellant.

Albion Dunn and M. K. Blount, both of Greenville, for appellee.

WALKER, J. This action was brought for the purpose of recovering the value of services performed in taking care of the defendant, J. E. S. Adams, in his old age, and while he was feeble and infirm, upon the promise made by him at the time that he would leave to plaintiff's intestate, Denie T. Brown, and her children, plaintiff herself being one of them, all of his property, both real and personal, worth about $20,000. Plaintiff sued as administratrix of her mother, and in her own behalf, to recover whatever amount is due, on account of the services rendered by them under the contract, and in order to establish her case she was permitted to testify, as a witness in her own behalf, to divers transactions and communications between her intestate and the defendant, since deceased.

When this case was argued before us, we received the impression that the defendant had "first opened the door" in regard to the testimony of transactions and communications between the plaintiff's mother, Mrs. Denie T. Brown, and the original defendant, J. E. S. Adams. We find, upon further investigation, that such was not the case; but, on the contrary, that the plaintiff offered this testimony at the outset of the trial before the jury. It will suffice to state generally that the testimony of the plaintiff herself related mostly to transactions and communications between her mother and intestate, Denie T. Brown, and the original defendant, J. E. S. Adams, who has since died. The defendant Mary Adams, his sister, is his executrix, and as such has been made a party to this action, in his place, as defendant. The plaintiff, a witness for herself individually and as administratrix, was permitted, under the examination of her counsel, to state very fully conversations and dealings between her mother and the defendant's testator, which, she alleged, occurred in her presence. That she is a deeply interested party, and has a large interest in the result of this action, not the slightest doubt can be entertained. There was also testimony of the plaintiff which was admitted over objection by defendant, and which related directly to a transaction or communication between the plaintiff herself and Mr. Adams. After giving a summary of the "actings and doings" of her mother and herself, on the one side, and Mr. Adams and his sister Mary, in 1912, when the latter moved to Greenville for the purpose of taking up their residence with them, where they were to receive the care and attention described by her, certain questions were propounded to her, which with the answers thereto are as follows:

Question 1: "State whether you or your mother were under obligations to care for or attend to the wants and necessities of Mr. Adams." Answer: "Yes, sir; we were under obligations to take care and attend to him and help them in sickness and in health."

Question 2: "State if you heard any conversation between Mr. Stanley Adams and your mother with reference to any consideration which he agreed to pay her in consequence of her waiting on and taking care of him." Answer: "Yes; he did say that he would make to her all his property."

Question 3: "Just state any conversation you may have heard between Mr. Adams and your mother relating to any compensation your mother was to receive." Answer: "He said he would give her the house and lot they now live in and give her a deed of gift for it to take place at his death; that pending the suit with Colin Tucker he said it would not be any good to make anything then until that was settled, and then he would make a will to her, including that and everything else; that the conversation took place in our home."

Witness further stated that they moved there then, and that his physical condition was bad, not being able to sit up. That Miss Mary's health was also bad.

Question 4: "Describe what attention and care, if any, your mother devoted to the comfort of Mr. Adams and Miss Mary." Answer: "She cooked for them, nursed them and sat up with them, read for them, and did everything that she could think of that would comfort him."

Question 5: "In consequence of that conversation, tell us what your mother did from 1912, when you say Mr. Adams and Miss Mary moved to Greenville." Answer: "In February, 1912, they moved in our home on Church street; mama had attended to that; and they moved to our home and stayed there with us until some time in April; and during that time my mother cooked for them, carried meals to them, and made extra nourishment for them; and it was necessary to rub him with liniment, and that was done. In April they moved from mama's house to an adjoining house, and we moved with them; after we moved with them mama cooked for them and did as I have said. Mr. Adams' condition was such as to require a physician several times."

Question 6: "From your knowledge of what your mother did—the attentions paid to the old people that you have testified about—what, in your opinion, would be a reasonable compensation for her services?" Answer: "Three thousand dollars. I did not know about Mr. Adams leaving a will when he died, my mother was not paid anything for the services rendered."

Question 7: "How long did the care and attention your mother gave Mr. Adams and Miss Adams last?" Answer: "Up until the day she was taken sick, eight days before she died."

Other interested witnesses were allowed to be asked, and to answer, similar questions. These questions and answers were each duly objected to by the defendant, and the several objections were overruled. Defendant excepted, and from the verdict and judgment in favor of the plaintiff, she appealed to this court, and here insists thatthe evidence was incompetent under Revisal, § 1631, and we agree with her that there was evidence which should have been excluded. Her counsel asked the witness, and she was permitted to answer, the first of the questions, which for convenience we have numbered. This answer clearly involved a personal transaction or communication between the plaintiff and Mr. Adams, who at the time of the trial was dead; the interests of those to whom his estate belongs under his will being defended by his executrix. This testimony should have been excluded, as its admission is expressly forbidden by the Revisal, § 1631, and this error, and the erroneous admission of other like testimony, entitles the defendant to a new trial.

But if the other testimony of the plaintiff, in regard to the transactions between her mother and Mr. Adams, is to be considered, we are of opinion that it was likewise incompetent under the same section. The plaintiff relies upon Ballard v. Ballard, 75 N. C. 191; Loftin v. Loftin, 96 N. C. 99, 1 S. E. 837; McCall v. Wilson, 101 N. C. 600, 8 S. E. 225; Bunn v. Todd, 107 N. 0. 266, 11 S. E. 1043; Johnson v. Cameron, 136 N. C. 244, 48 S. E. 640. We will now consider these cases, and show that not one of them applies, but that each and all of them dealt with questions which are radically different. Ballard v. Ballard, supra, was one of the "proof of handwriting" cases, like Peoples v. Maxwell, 64 N. C. 313, which as Justice Bynum stated do not involve any personal transaction or communication, but may be based on knowledge acquired in quite a different way. Referring to Peoples v. Maxwell, supra, in Ballard v. Ballard, supra, he said:

"In Peoples v. Maxwell, 64 N. C. 313, it was held that although it was competent for the plaintiff to prove the handwriting of the intestate of the defendant, it was incompetent for him to prove that he saw the intestate actually sign a particular paper. The distinction is that handwriting is proved by a general knowledge of it, and the proof is abstract, and as applicable to one case as another. But proof by him that he saw the deceased sign a particular paper is proof of a transaction between him and the deceased. In our case Wooten, the assignee, it is true, was not called to prove directly the assignment to him by the intestate, but he was called to prove, and did prove, that he saw J. Gooding 'sign his name as witness to the indorsement of the intestate, Council Gooding.' The signature of the intestate was a cross mark, incapable of identification and proof, without an attesting witness, whereupon the defendant Gooding was called in by the parties as this witness to the ceremony of transferring the bond from the intestate of Wooten. And now Wooten, a party to that 'transaction, ' is called to prove, and under objection does prove, all the facts necessary to make effectual this transaction between him and the intestate, to wit, that he saw the defendant sign his name as a witness. He thus indirectly, but conclusively, testifies to a transaction between himself and a person since deceased. The case falls directly within the principle established in Peoples v. Maxwell, above cited, and Whiteside v. Green, 64 N. C. 307; Murphy v. Ray, 73 N. C. 588; McCanless v. Reynolds, 74 N. C. 301. The witness Wooten, having indorsed the bond to the plaintiff with a guaranty, the result of this action, of course, can affect his interest or the interest previously owned by him. C. C. P. § 343. We are not disposed to relax the common-law rules of evidence beyond the innovations clearly established by the recent Legislature."

We have quoted Justice Bynum's language somewhat at length, because it is very significant in this connection, and surely indicates with striking...