Citizens Bank & Trust Co. v. Reid Motor Co.

• Decision Date: 08 November 1939
• Docket Number: 377.
• Citation: 5 S.E.2d 318,216 N.C. 432
• Parties: CITIZENS BANK & TRUST CO. et al. v. REID MOTOR CO. et al.
• Court: North Carolina Supreme Court

5 S.E.2d 318

216 N.C. 432

CITIZENS BANK & TRUST CO. et al. v. REID MOTOR CO. et al.

No. 377.

Supreme Court of North Carolina

November 8, 1939

Proceeding for award of compensation under the North Carolina Workmen's Compensation Act, Code 1935, § 8081(h) et seq. on account of the death of Roy H. Lentz.

The claim was first heard before Commissioner Dorsett of the North Carolina Industrial Commission, who awarded compensation which was affirmed on appeal to the Full Commission.

On 24 May, 1938, Roy H. Lentz, an employee of the Reid Motor Company, was shot and killed by one Jack Freeze, a commission salesman of the same company. Defendants deny liability for that they contend that the injury and death of Roy H. Lentz was not caused by accident arising out of and in the course of his employment within the meaning of the North Carolina Workmen's Compensation Act.

On the hearing before Commissioner Dorsett, the claimant called Jack Freeze as a witness. After testifying for a short time and upon examination by counsel for claimant and by the Court the witness refused to answer questions. Thereupon, he was tendered to defendants for cross examination. After answering a few immaterial questions by counsel for defendants "the witness then refused to answer any further questions, and at this point the Court found as a fact that the witness, Jack Freeze, refused to answer any further questions to be propounded to him. Commissioner Dorsett of his own motion ordered that the transcript of the record testimony of Jack Freeze in the criminal proceeding in the case of 'State of North Carolina v. Jack Freeze' tried in the Superior Court of Cabarrus County, North Carolina, be made an official part of the record". Defendants objected, and then and there moved the Commissioner to strike from the record all of the testimony of Jack Freeze for that:

"1. After Jack Freeze, a witness introduced by the claimants, had been sworn and testified at the hearing before Commissioner Dorsett, this day held in Concord, North Carolina, and after the said witness had been offered to the defendants and their attorney for cross examination, and before the defendants could complete their cross examination of the said witness, the said witness, Jack Freeze, refused to answer the questions to be propounded for and in behalf of the defendants.

"2. Commissioner Dorsett announced that he would consider the testimony of Jack Freeze given at the time of the criminal trial in the Superior Court of Cabarrvs County, entitled, 'State of North Carolina v. Jack Freeze,' wherein the said Jack Freeze was convicted of second degree murder in connection with the death of Roy H. Lentz; that the Reid Motor Company and the Travelers Insurance Company were not parties to the aforesaid criminal case of 'State of North Carolina v. Jack Freeze', had no opportunity to cross examine the said Jack Freeze; and that all of his testimony, that is, the testimony given at the original trial and the testimony given before the Commissioner Dorsett, should be stricken from the record and not considered by the Industrial Commission."

The motion was not allowed.

From the evidence in the case, the Commissioner finds as a fact that the deceased, Roy H. Lentz, "suffered an injury and accident which arose out of and in the course of his employment, which resulted in his death when he was fatally wounded by a fellow employee", and concluded as a matter of law; in part, as follows: "There is in the record some testimony from this killer. After testifying for a short while, he refused to answer any further questions, saying he was being re-tried again for his life. There was no way to force this witness to testify. There is enough evidence, however, from him in the record to justify the finding that the accident suffered by the injured employee causing his death arose out of and in the course of said employee's employment by the Reid Motor Company." The Superior Court affirmed the award of the Commission.

Thereupon, defendants appeal to the Supreme Court, and assign error.

Guthrie, Pierce & Blakeney, of Charlotte, for appellants.

E. Johnston Irvin, Robert H. Irvin, and Hartsell & Hartsell, all of Concord, for appellees.

WINBORNE Justice.

Appellants appropriately assign as error: (1) the refusal of the court to strike from the record all of the testimony of the witness Jack Freeze, given on the hearing below, when he declined to submit to further cross-examination; and (2) the admission in evidence of the transcript of testimony of Jack Freeze given in a criminal action against him, to which the defendants were not parties. Decisions of the courts generally support the basic principle upon which these assignments rest.

1. A party has the right to an opportunity to fairly and fully cross-examine a witness who has testified for the adverse party. This right, with respect to the subject of his examination-in-chief, is absolute and not merely a privilege. A denial of it is "prejudicial and fatal error". Resurrection Gold Mining Co. v. Fortune Mining Co., 8 Cir., 129 F. 668, 674; 70 C.J. 611; State v Hightower, 187 N.C. 300, 121 S.E. 616; Riverview Milling Co. v. Highway Comm., 190 N.C. 692, 130 S.E. 724; State v. Beall, 199 N.C. 278, 154 S.E. 604; State v. Nelson, 200 N.C. 69, 156...