Cannon v. Motors Ins. Corp., 16807

• Decision Date: 21 December 1953
• Docket Number: No. 16807,16807
• Citation: 224 S.C. 368,79 S.E.2d 369
• Court: South Carolina Supreme Court
• Parties: CANNON v. MOTORS INS. CORP. et al.

Page 369

79 S.E.2d 369

224 S.C. 368

CANNON v. MOTORS INS. CORP. et al.

No. 16807.

Supreme Court of South Carolina.

Dec. 21. 1953.

Leatherwood, Walker, Todd & Mann, Attys., Greenville, for appellant.

J. G. Leatherwood, C. Victor Pyle, Greenville, for respondent.

TAYLOR, Justice.

This appeal arose out of an action in claim and delivery by respondent, a used car dealer in Greenville, South Carolina, for possession of a 1949 Model Chevrolet automobile.

The complaint of respondent and the answer of appellant each alleged ownership of the said car to be in the respective parties, appellant having acquired such title as it had by virtue of a bill of sale from an alleged former owner to whom it had paid the proceeds of an insurance policy covering the loss of said car by theft. Thus the issue to be determined is the ownership of the car.

The case came on to be heard by the Honorable W. B. McGowan, Judge of the Greenville County Court, and a jury on June 2, 1952, and resulted in a verdict for plaintiff, respondent here; hence this appeal upon exceptions which present the questions of: First, whether or not the trial Judge erred in excluding certain testimony contained in the proffered deposition. Second, whether or not error was committed in refusing to grant appellant's motions for directed verdict and for judgment non obstante veredicto.

Appellant attempted to introduce into the record by way of deposition the testimony of one Emma C. Thibault who was identified as being employed by the Chevrolet Detroit Gear and Axle Division of General Motors Corporation as supervisor of records and being such had in her custody the permanent records of the Chevrolet Motor Car Company, such records having been compiled by the production tags being sent to that office from various places where the parts were produced and assembled. Respondent objected on the ground that such testimony was hearsay. The objection was sustained and the proffered testimony excluded by the trial Judge.

An examination of the transcript reveals that the deposition contained statements by the witness as to what the records contained but that appellant at no time introduced into the evidence the records themselves. Such records apparently were being used by the witness as reference for her testimony. We are, therefore, not called upon to pass upon the question of whether or not the records themselves would have been a violation of the hearsay rule but whether or not the testimony of a witness who was obtaining her information from such records was a violation of the hearsay rule.

Wigmore On Evidence, Sec. 1521, discusses exceptions to the hearsay rule and the proffered testimony falls within none of the listed exceptions as the testimony sought to be incorporated into the evidence was the testimony of the witness based on the entries and not the entries themselves. See Moore v....