Burton v. Styers
| Citation | 186 S.E. 248,210 N.C. 230 |
| Decision Date | 15 June 1936 |
| Docket Number | No. 748.,748. |
| Parties | BURTON. v. STYERS (two eases). |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rockingham County; Rousseau, Judge.
Separate actions, tried together, by Mrs. Alice T. Burton and by D. C. Burton against Mrs. Pearl T. Styers, administratrix of the estate of G. D. Williams. Judgments for plaintiffs, and defendant appeals.
No error.
Two separate actions for personal services to decedent, one on the part of Mrs. Alice T. Burton and the other on the part of D. C. Burton, were by consent of all parties and for convenience tried together.
In each case the plaintiff alleged a cause of action for services rendered to defendant's testator, an aged and feeble person, and sought compensation both on the ground of express agreement to pay and upon quantum meruit.
The plaintiff in the first named action and the plaintiff in the second are husband and wife.
During the trial, Mrs. Alice T. Burton was permitted, over objection, to testify to what services she saw D. C. Burton render to decedent, and D. C. Burton was permitted, over objection, to testify to what services he saw Mrs. Alice T. Burton render to decedent; the judge in each instance cautioning the jury to consider the evidence of the wife only in the husband's suit, and the evidence of the husband only in the wife's suit. This caution was repeated in the charge of the jury at the close of the testimony.
Separate issues in each case were submitted to the jury and answered in favor of the respective plaintiffs, and from judgments thereon defendant appealed.
H. R. Scott and Sharp & Sharp, all of Reidsville, for appellant.
P. T. Stiers, of Reidsville, and Henry P. Lane, of Leaksville, for appellees.
The determinative question presented by the appeal in these cases involves the competency of the testimony of Mrs. Burton in behalf of and in support of her husband's suit, and of the testimony of Mr. Burton in behalf of and in support of his wife's suit, against the administratrix of a deceased person. Was this testimony rendered incompetent by C. S. § 1795? This statute, since its enactment as a part of the Code of Civil Procedure of 1868, has been frequently considered by this court and discriminating distinctions drawn as to its application to varying facts. It provides in effect that "upon the trial of an action * * * a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the * * * administrator * * * of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased."
It has been consistently held by this court that the prohibition against the testimony of a "person interested in the event" extends only to those having a "direct legal or pecuniary interest, " and not to the sentimental interest the husband or wife would naturally have in the law suit of the other. Hall v. Holloman, 136 N.C. 34, 48 S.E. 515; Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, L.R.A.1917A, 1; Vannoy v. Stafford, 209 N.C. 748, 184 S.E. 482; C.S. § 1801.
Hence the fact of the relationship of husband and wife would not of itself render the testimony of either Mrs. Burton or Mr. Burton incompetent under the statute. These were separate suits. In the suit of D. C. Burton against the administratrix of G. D. Williams, deceased, Mrs. Burton had no legal or pecuniary interest in the recovery by her husband of compensation for services rendered by him to the decedent. In that suit she was neither a party nor interested in the event. The same rule would apply to Mr. Burton when testifying in the suit of Mrs. Alice Burton against the same administratrix. The trial of the two actions together would not have the effect to alter this rule. It would onlyimpose upon the trial judge the duty to keep clearly in the minds of the jurors the distinction that the testimony of the one was to be considered only in the case of the other, and this the careful and painstaking judge seems to have done, both at the time the evidence was admitted and in his charge to the jury. The defendant consented that the two actions be tried together and cannot now complain of any difficulty occasioned by this situation.
The testimony of Mr. Burton in the one case and of Mrs. Burton in the other consisted of statements as to what services each saw the other render to the decedent and as to declarations of the decedent made in the hearing of the witness. It has been repeatedly held that an interested witness may testify of "any substantive and independent fact" that is not a communication or personal transaction with the deceased (Witty v. Barham, ...
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