Greene v. Carroll

• Decision Date: 22 November 1933
• Docket Number: No. 410.,410.
• Court: North Carolina Supreme Court
• Parties: GREENE. v. CARROLL et al.

171 S.E. 627

205 N. C. 459

GREENE.

v.CARROLL et al.

No. 410.

Supreme Court of North Carolina.

Nov. 22, 1933.

STACY, C. J., dissenting.

Appeal from Superior Court, Gaston County; Harding, Judge.

Action by W. T. Greene against B. L. Carroll and another, trading as Roxie Theatre. Judgment for plaintiff, and defendants appeal.

No error.

Since the beginning of this action J. R. (J. E.) Carroll, one of the defendants, has died, and E. L. Carroll has been duly appointed as administrator of his estate and made party defendant to this action.

This was a civil action, brought by plaintiff against defendants to recover certain personal property, and the ancillary remedy of claim and delivery was taken out.

Plaintiff contends in his complaint that he was the owner of certain lights known as Strong lamps (and a stove, which having been delivered, was not in controversy), claiming to have purchased them from one Beam, who was a lessee of the defendants of a picture theatre in Bessemer City. That after a fire in the picture theatre canceling the lease in accordance with its terms, the plaintiff de-manded to have the lights turned over to him, and defendants refused. The plaintiff based his claim to the property on his purchase from Beam, alleging that the lights were never the property of the lessors, the defendants; not being included in the lease.

The defendants contend in their answer that the lights were their property, having been substituted by agreement with Beam for the lights that were in and part of the equipment of the picture theatre when leased by said Beam, and that the defendants had never parted title to the same, either to Beam or to Greene. There was evidence to sustain the contentions of the plaintiff and defendants.

The issues submitted to the jury and their answers thereto were as follows:

"1. Is the plaintiff the owner of and entitled to the possession of the property described in the complaint? Answer: Yes.

"2. Does the defendant wrongfully withhold possession of the same from the plaintiff? Answer: Yes.

"3. What was the value of the property at the time of the commencement of this action? Answer: $600.00.

"4. What damage, if any, is plaintiff entitled to recover of the defendants by reason of the wrongful detention of the property described in the complaint? Answer: 6% from the date of the issuing of the summons in this case answered by the Judge as a matter of law based on the jury's answer of First, Second and Third issues."

The court below rendered judgment on the verdict. The defendants made numerous exceptions and assignments of error, and appealed to the Supreme Court. The necessary facts and material exceptions and assignments of error will be set forth in the opinion.

S. J. Durham, of Gastonia, for appellants.

John A. Wilkins, of Gastonia, for appellee.

CLARKSON, Justice.

Plaintiff, W. T. Greene, testified in part: "Operated the Roxie Theatre at Bessemer City, N. C, leasing it from Ennis Beam of Shelby, N. C., purchasing from Beam two Strong lamps and rectifiers, which were in the theatre at Bessemer City, paying Mr. Beam one thousand dollars for them. They are not connected with the machine. Had conversation with Mr. Beam in presence of defendant, E. L. Carroll. (By the Court: Just state what you said and what they said.) We went over there and told Mr. Carroll that I had purchased the property. (By the Court: Who do you mean by 'we'?) Mr. Beam and Mr. Plummer and I. We went to Bessemer City and saw Mr. Carroll there, Mr. E. L. Carroll, and I told him that I had bought these Strong lamps and stove, and I was going to operate the theatre and he said it was agreeable to him. (The Court: Who is 'he'?) Mr. Carroll said it was agreeable with him--that all he was looking for was the rent from the building. Mr. Carroll did not indicate that he had claim on the lamps, and I did not know he had a claim on them. Did not know that Mr. Beam was liable to Mr. Carroll for them. Carroll did not indicate Beam was liable for them to him. * * * I asked Mr. Carroll if he would charge me anything to leave the lamps in the building, and he told me he might want to buy them from me if he fixed up the theatre, and it would be all right for me to leave them. I demanded the lamps afterwards and he told me I could not move them. That was my first intimation that he claimed them. He allowed me to move no equipment. Said that Mr. Beam owed his rent and he did not want to turn the lamps loose until rent was paid. I took claim and delivery for the property."

The defendant E. L. Carroll testified, in part: "My equipment was complete with lights at time I leased to Mr. Beam, and Mr. Beam by agreement with me exchanged my light for the Strong lamps. The Strong lamps and rectifiers substituted the lights I had. Mr. Beam traded my lights for the Strong lamps. I never sold to Mr. Beam or to Mr. Greene, my lighting equipment, and they have never tendered me my lights back. Mr. Beam and I agreed that he might swap the lamps, and the lamps he got were to be substituted for mine. A fire happened after about three months."

D. H. Payne testified:

"Operated the Roxie Theatre both before and after the fire for Mr. Carroll and his brother.

"Q. State whether or not you have heard Mr. Beam make any statement with respect to the title of Mr. Carroll and his brother or Mr. Greene. (Objection by Plaintiff; sustained, exception.) (If allowed to answer, Mr. Payne would have said 'Yes.')

"Q. Whose (lamps) did he say they were? (Objection by plaintiff; sustained, exception.) (If allowed to answer Mr. Payne would have said 'Mr. Carroll.') I was operating the theatre before the lease and it had Mazda lights, which were the usual lights, at that time. After the fire there were Strong lamps there, the Mazda lamps had been removed. It would not have been a complete picture machine without lights. (Cross-examination.) The lamps were attached to the machine with two rods running through the frame." Defendant offers subpoena for Mr. Beam. It is indorsed "not to be found."

We do not think the exceptions and assignments of error can be sustained.

In 10 R. C. L., part § 132, p. 958, the following principle is laid down: "Hearsay denotes that kind of evidence which does not deriveits value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person. Such evidence is generally inadmissible to prove or disprove a material fact involved in the issue between the parties. The reason for this rule of exclusion is that hearsay is not subject to the ordinary testa required by law for ascertaining its truth, the author of the statements not being exposed to cross-examination in the presence of a court of justice, and not speaking under the penal sanction of an oath, there being no opportunity to Investigate his character and motives, and his deportment not being subject to observation." N. C. Handbook of Evidence (Lockhart-Rucker, 2d Ed., 1931) § 138; State v. Lassiter, 191 N. C. 210, 131 S. E. 577; State v. Green, 193 N. C. 302, 136 S. E. 729; State v. Blakeney, 194 N. C. 651, 140 S. E. 433; State v. Simmons, 198 N. C. 599, 152 S. E. 774.

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