Brown v. Green
| Decision Date | 05 February 1969 |
| Docket Number | No. 68SC198,68SC198 |
| Citation | 3 N.C.App. 506,165 S.E.2d 534 |
| Parties | Louise Cannady BROWN v. Annie Laurie BREEN, Administratrix of the Estate of Willie Lou Cannady. |
| Court | North Carolina Court of Appeals |
Vaughan S. Winborne, Raleigh, for plaintiff appellee.
Sterling G. Gilliam, Henderson and Banzet & Banzet, by Frank Banzet, Warrenton, for defendant appellant.
Defendant appellant contends that the trial court committed error in admitting testimony of the plaintiff concerning transactions and communications between the plaintiff and defendant's intestate in violation of G.S. § 8--51 which reads in part as follows:
'Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. * * *'
In Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542, the following rule relating to G.S. § 8--51 is stated:
'This statute does not render the testimony of a witness incompetent in any case unless these four questions require an affirmative answer:
'Even in instances where these four things concur, the testimony of the witness is nevertheless admissible under an exception specified in the statute itself if the personal representative of the deceased person, or the committee of the lunatic, or the person deriving his title or interest from, through, or under the deceased person or lunatic, is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction or communication.
'Somewhat similar analyses of the statute appear in the following authorities: Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043; Stansbury on the North Carolina Law of Evidence, section 66.
In the case under consideration, it is undisputed that the plaintiff was a witness testifying in her own behalf as well as a party to the action and interested in the event. It is also undisputed that the defendant was the personal representative of the deceased, Willie Lou Cannady. It is in evidence that the plaintiff was one of nine living children of the deceased at the time of her death on 1 October 1964.
Plaintiff was permitted to testify over objection that on 19 March 1963 plaintiff and her mother went to an attorney's office and to the Citizens Bank. The attorney later testified over objection and exception that 'the gist of the conversation' he had with the plaintiff and her mother on this occasion was concerning a deed of trust to be executed by the deceased for $15,000.00. However, the instrument was never executed. An official of the Citizens Bank & Trust Company in Henderson testified that on the date of 19 March 1963 Willie Lou Cannady opened an account with the bank in the amount of $15,000.00. When the actions and conduct on 19 March 1963 of the plaintiff and deceased, as testified to by plaintiff, are thus viewed together with other evidence relating to the $15,000.00 deposit and evidence as to where the money came from, it is obvious that the testimony of the plaintiff with respect to the trip to the bank and to the lawyer's office on that date concerned a personal transaction between plaintiff and deceased tending to establish the claim herein being asserted against the personal representative of the deceased. Such is prohibited by G.S. § 8--51, and its admission over objection was prejudicial error.
The following question was asked plaintiff and answer given after defendant's objection to the question was overruled:
'Q On April 27, 1964, did you withdraw any deposit from that account?
'A Yes, I withdrew $4,500.00 and sent my mother a Treasurer's check in the sum of $4,500.00, with this letter attached.'
In this case what the plaintiff did with respect to withdrawing money from her bank account was competent. That is all that the foregoing question referred to. The trial court correctly overruled the objection to the Question.
'The statute does not preclude an interested party from testifying as to his own acts or the acts and conduct of the decedent when the witness is testifying as to facts based upon independent knowledge not derived from any personal transaction or communication with the deceased.' 3 Strong, N.C. Index, 2d, Evidence, Section 11, p. 610.
The answer of the witness was in part responsive to the question and in part was not responsive. That part of the answer relating to sending her mother a treasurer's check for $4,500.00 was not responsive. However, defendant did not move to strike the answer or any part thereof. 'The rule is that where a question asked a witness is competent, exception to his answer, when incompetent in part, should be taken by motion to strike out the part that is objectionable.' Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196; Stansbury, N.C. Evidence 2d, Section 27. See also, state v. Battle, 267 N.C. 513, 148 S.E.2d 599. The question as to whether the unresponsive part of the answer was incompetent under G.S. § 8--51 in the absence of a motion to strike is not presented on this record by the objection and exception to the Question.
Plaintiff, as a witness for herself, was also asked, 'What comprised the $15,000.00?' She replied: 'I brought approximately $9,000 and some money down here with me, had the $6,045 cash from Oxford Bank, and my mother paid me $2,500.' Defendant's motion to strike was overruled, and the defendant excepted. For the plaintiff to testify over objection that the deceased paid her $2,500.00 under the circumstances and evidence in this case is testimony concerning a personal transaction between them which tended to establish the alleged claim of plaintiff. However, this error was cured when the plaintiff was thereafter permitted to testify, without objection, concerning 'the $2,500.00 that my mother was paying me.' The rule is that when incompetent evidence is admitted over objection, the admission of such evidence is cured where the same evidence, or evidence of substantially the same import, is thereafter admitted without objection. 1 Strong, N.C. Index 2d, Appeal and Error, Section 48, pp. 196, 197; State v. Brown, 1 N.C.App. 145, 160 S.E.2d 508.
Defendant also asserts that the trial court committed error in allowing, over objection, Sterling G. Gilliam, an attorney at law, to testify. The evidence tended to show that in preparing a deed of trust for the plaintiff and defendant's intestate on 19 March 1963, he was acting as attorney for both of them and that the communications between the lawyer and the plaintiff and deceased were not regarded as confidential. In the case of Dobias v. White, 240 N.C. 680, 83 S.E.2d 785, the Supreme Court said:
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