Bullock v. Insurance Co. of North America

• Decision Date: 16 January 1979
• Docket Number: No. 7818SC145,7818SC145
• Parties: Susan W. (Hartsog) BULLOCK, Executrix of the Estate of Ralph Hartsog v. The INSURANCE COMPANY OF NORTH AMERICA. Susan W. (Hartsog) BULLOCK, Executrix of the Estate of Ralph Hartsog v. Murray M. WHITE, Jr., Murray M. White, Inc., a corporation, and Insurance Company of North America.
• Court: North Carolina Court of Appeals

Page 732

250 S.E.2d 732

39 N.C.App. 386

Susan W. (Hartsog) BULLOCK, Executrix of the Estate of Ralph Hartsog v. The INSURANCE COMPANY OF NORTH AMERICA.

Susan W. (Hartsog) BULLOCK, Executrix of the Estate of Ralph Hartsog v. Murray M. WHITE, Jr., Murray M. White, Inc., a corporation, and Insurance Company of North America.

No. 7818SC145.

Court of Appeals of North Carolina.

Jan. 16, 1979.

Smith, Patterson, Follin, Curtis, James & Harkavy by J. David James, John R. Kernodle, Jr., and Norman B. Smith, Greensboro, for plaintiff-appellant.

W. F. Maready, James H. Kelly, Jr., and W. Thompson Comerford, Jr., Winston-Salem, for defendant-appellee The Insurance Co. of North America.

Teague, Johnson, Patterson, Dilthey & Clay by Grady S. Patterson, Jr., Robert W. Sumner and Alene M. Mercer, Raleigh, for defendant-appellee Murray M. White, Inc.

MITCHELL, Judge.

The plaintiff assigns as error the failure of the trial court to allow her to introduce into evidence portions of a deposition of Richard Austin, an employee of Air Service, and portions of the testimony of Austin given at the former trial of this action. Prior to the first trial of this action, a deposition of Austin was taken. Both the plaintiff and the defendant INA were represented by counsel at the taking of Austin's deposition, but the defendants Murray M. White, Inc., and Murray M. White, Jr., were not. During the taking of his deposition, Austin was asked whether he had personal knowledge as to why N9280Q was removed from the premises of Air Service on 6 or 7 December 1971. Austin replied, "To my knowledge, it was the intention of the pilot to place the airplane in service." When asked whether his answer was based upon personal knowledge, Austin explained, "Marshall Parker took the airplane and told me he was going to fly his schedule the next day in the airplane."

Thereafter, during the first trial, Austin was asked on direct examination by the plaintiffs whether Parker had made any statement with respect to his intentions to use N9280Q. The defendants' objection to this question was sustained. Austin was then allowed to answer the question for the record and out of the presence of the jury. He responded, "Mr. Parker told me when he left Greensboro on Tuesday afternoon he was going to fly his trip in the airplane the next morning."

Austin apparently died at sometime between the first trial and the second trial which resulted in this appeal. Therefore, it was necessary for the plaintiff to read a transcript of Austin's former testimony into evidence at the second trial in order to introduce evidence of certain facts known only to Austin. The trial court allowed the plaintiff to read most of the transcript of Austin's former testimony but ruled that the portion of the transcript which dealt with Parker's statement to Austin was inadmissible. The trial court also ruled that evidence to the same effect in Austin's deposition was inadmissible. The plaintiff excepted to these rulings.

In order to determine the correctness of these rulings by the trial court, we must first determine whether the pilot Parker's statement to Austin would have been admissible had Austin been present and testified at the second trial. The defendants contend that the hearsay rule prohibited Austin from giving testimony concerning Parker's statement. We do not agree.

A statement is hearsay evidence if it was made out of court by someone other than the witness testifying and is used to prove the truth of the matter asserted within the statement. McCormick, Evidence § 246 at 584 (2d ed. 1972). Even though a statement is made out of court by someone other than the witness, however, it is not hearsay if used to prove anything other than the matter asserted in the statement. 1 Stansbury's N.C. Evidence, §§ 138, 141 (Brandis Rev. 1973); 6 Wigmore, Evidence § 1766 (Chadbourn Rev. 1976); McCormick, Evidence, § 249 (2d ed. 1972). The hearsay rule does not apply to testimony of an out-of-court statement by one other than the witness testifying when the testimony is offered as proof that the statement was in fact made rather than as proof of the truth of the facts asserted in the statement. Wilson v. Indemnity Co., 272 N.C. 183, 158 S.E.2d 1 (1967); In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332 (1955); State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85 (1943); State v. Griffis, 25 N.C. 504 (1843).

Here, Parker's statement was not offered to prove the truth of the matter asserted therein. It was offered instead to prove that, when possession of N9280Q was transferred from Air Service to Parker, the transfer was not for the purpose of a test flight but a delivery of the airplane for normal use. That is to say, Parker's statement was not being used to show whether he was going to fly the airplane or in fact made the flight. Rather, the statement that "he was going to fly his schedule" was offered as tending to show his manifest intent at the time he took possession of the airplane that he take that possession for his normal use as pilot for Knit-Away. His intent at that time was relevant in determining whether the manner in which he took possession was such as would work a transfer of ownership and of an insurable interest. If the airplane was delivered to Parker at the time he made the statement, his subsequent actions or statements concerning the airplane would not make testimony as to that statement inadmissible, as Parker could not later revoke a prior transfer of ownership by deciding not to make the flight. Therefore, Austin could have testified to Parker's statement at the time Parker accepted the airplane without violating the hearsay rule.

Having determined that Austin's testimony as to Parker's statement would have been competent had Austin been available to testify, we must consider whether that testimony was competent when presented in the form of Austin's testimony admitted at a former trial. One requirement for the admission of former testimony is that the party against whom the testimony is offered or a like party in interest must have had a reasonable opportunity to cross-examine the witness at the former trial. Bank v. Motor Co., 216 N.C. 432, 5 S.E.2d 318 (1939). Although actual cross-examination is not necessary, the decision not to cross-examine must be meaningful in light of the...