Hardison v. Gregory

• Decision Date: 30 June 1955
• Docket Number: No. 753,753
• Parties: H. F. HARDISON v. James A. GREGORY and Gerald M. Gregory, Coadministrators of the Estate of Bonnie M. Gregory.
• Court: North Carolina Supreme Court

Page 96

88 S.E.2d 96

242 N.C. 324

H. F. HARDISON v. James A. GREGORY and Gerald M. Gregory, Coadministrators of

the Estate of Bonnie M. Gregory.

No. 753

Supreme Court of North Carolina.

June 30, 1955

Reade, Fuller, Newsom & Graham, Durham, for defendants, appellants.

Gantt, Gantt & Markham and James R. Patton, Durham, for plaintiff, appellee.

PARKER, Justice.

The defendants have grouped their Exceptions One through Fifteen, both inclusive, and have discussed these Fifteen Exceptions as one assignment of error in their brief. This was proper because all these exceptions present a single question of law for decision by the Court. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. The question of law is this: Does the testimony of plaintiff concerning the conduct of the deceased Bonnie M. Gregory to his wife, Mrs. Nellie Hardison, on three separate occasions and his striking Bonnie M. Gregory in the face with a hatchet, constitute a transaction or a communication with a deceased person within the contemplation of G.S. § 8-15?

Over the defendants' objections and exceptions plaintiff was permitted to testify in substance as follows:

First Occasion

In November 1949 plaintiff had been away from home on a duck hunting trip. He arrived home about 8:30 p. m. No lights were on. He walked in the house, turned on the lights, and found Bonnie M. Gregory standing in the living room close to the bedroom door. The bedroom door was locked.

Second Occasion

Plaintiff knew where Bonnie M. Gregory's farm and cabin were on the Roxboro Road. In March 1949 he drove by and saw Bonnie M. Gregory's car parked near the cabin. Later, about 12:00 o'clock noon, he came back, and saw his wife and Bonnie Gregory leaving in Gregory's Cadillac car. He tried to catch them in his Mercury car, but the Cadillac outran him, and he lost them in the northern part of the City of Durham.

Third Occasion

On the afternoon of 3 January 1952, pursuant to a telephone call, plaintiff went out on the Fayetteville Road to a cabin belonging to Rat Massey. This cabin was about 400 yards from the highway. He saw parked there Bonnie Gregory's Cadillac car. He parked his car, and walked by the cabin on a dirt road. Before he got back to his car, he saw Gregory and his wife come out of the cabin, get in the Cadillac, and drive away. He chased the Cadillac five or six miles, going 90 to 95 miles an hour. A train blocked the Fayetteville Road, and Gregory turned down a dead end dirt road. Gregory drove his car to a Negro's home, through the yard, across a field, hit a tree, and stopped. He went to the Cadillac; Gregory rolled up the glass window. The doors were locked. Plaintiff's wife was on the floor board of the front seat. He went back to his car, got a hatchet, knocked out a glass window of the Cadillac, and struck Gregory in the face with the hatchet. His wife got up from the floor board, opened the right door, and got out. He ran around the car, and knocked the glass there out. Gregory jumped out, ran to a nearby shallow creek, and stood in it putting water on his face. Plaintiff's wife stood 10 or 12 steps from the creek while Gregory was standing in it. Before leaving, plaintiff testified he had a conversation with his wife and Gregory, but he was not asked, and did not testify, as to what was said.

The plaintiff also testified as follows over objection and exception:

Fourth Occasion

When plaintiff's wife was working for Bonnie Gregory in 1948, upon one occasion plaintiff looked through a window of Gregory's office and saw Gregory hugging and kissing her.

The exceptions as to this testimony on the fourth occasion are numbered 16 and 17. These two exceptions are not brought forward, and discussed in defendants' brief. Exceptions Nos. 16 and 17 are taken as abandoned. Rule 28, Rules of Practice in the Supreme Court. 221 N.C. 562.

Alienation of affections ard criminal conversation are two distinct torts. Generally a physical debauchment of plaintiff's wife is not a necessary element of a right of action for alienation of affections. 42 C.J.S., Husband and Wife, § 668.

The form of action for both torts is ex delicto. 42 C.J.S., Husband and Wife, §§ 683 and 699. G.S. § 8-51 applies to tort actions. Boyd v. Williams, 207 N.C. 30, 175 S.E. 832.

We have a host of cases construing and interpreting the words 'a personal transaction or communication between the witness and the deceased person' used in G.S. § 8-51, and much litigation has arisen over the application of the quoted words.

The Court said in Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156, 158, speaking in reference to G.S. § 8-51: 'Courts are not disposed to extend the disqualification of a witness under the statute to those not included in its express terms.'

We said in Whitesides v. Green, 64 N.C. 307: 'But there is no prohibition against the defendant testifying as to any matter other than a transaction or communication with the deceased.' These words are quoted in In re Will of Bowling, 150 N.C. 507, 64 S.E. 368.

Apparently we have no case directly on all fours, but we have a number of cases that sustain the proposition that G.S. § 8-51 does not prohibit an interested party from testifying as to the acts and conduct of the deceased, where the interested party is merely an observer--in other words as to independent facts based upon independent knowledge, not derived from any personal transaction or communication with the deceased. Gray v. Cooper, 65 N.C. 183; McCall v. Wilson, 101 N.C. 598, 8 S.E. 225; Costen v. McDowell, 107 N.C. 546, 12 S.E. 432; Lane v. Rogers, 113 N.C. 171, 18 S.E. 117; Worth v. Wrenn, 144 N.C. 656, 57 S.E. 388 (testimony of deceased on former trial); In re the Will of Bowling, supra; Sutton v. Wells, 175 N.C. 1, 94 S.E. 688; In re the Will of Harrison, 183 N.C. 457, 111 S.E. 867; In re Will of Mann, 192 N.C. 248, 134 S.E. 649; In re Will of Foy, 193 N.C. 494, 137 S.E. 427; Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; Stansbury's North Carolina Law of Evidence, pp. 128-129.

In Gray v. Cooper, supra, plaintiff was held competent to testify that the deceased had and enjoyed the services of slaves. This Court said: 'That the intestate had the possession of the slaves during the years in question was a fact which the plaintiff might know, and which he says he did know, otherwise than from a transaction or communication with the intestate.' The Court goes on to say, if this testimony was not true, it might have been contradicted by the slaves.

In McCall v. Wilson, supra [101 N.C. 598, 8 S.E. 225], it is said that an interested witness may testify as to what she saw the deceased do, as that 'she saw him start off with the money, and bring back the deed.'

In Lane v. Rogers, supra, it was held that plaintiff was competent to testify that she saw the book in the hands of intestate on her wedding day, but that she was incompetent to testify that intestate handed her the book, because that was a personal transaction between her and the intestate.

The case of In re Will of Bowling, supra [150 N.C. 507, 64 S.E. 370], holds that the testimony of an interested witness as to the relative positions of the deceased testator, the attesting witnesses and the desk and counter in a store and as to what he saw deceased testator do, was properly admitted in evidence as 'manifestly independent facts', not involving transactions or communications with the deceased.

In Sutton v. Wells, supra [175 N.C. 1, 94 S.E. 689], an interested party testified the deceased occupied the building after she got her deed. The Court said: 'This did not relate to any transaction between the witness and M. M. Wells, but was a sustantive fact of which she had knowledge independently of any statement by the deceased and the testimony was competent just as she could have proved the handwriting of the deceased, or the value of property owned by him, or any other substantive fact.'

The case of In re Will of Harrison, supra [183 N.C. 457, 111 S.E. 868], states: 'It was competent for the witness to say whether or not the drawer was locked, and to testify as to the habit or custom of keeping it locked. This was a matter within her own knowledge and did not perforce entail a recitation of any personal transaction or communication with the alleged testator.'

Boyd v. Williams, supra, was a civil action to recover damages for personal injuries brought by a wife against the administrator of her deceased husband. The only evidence of negligence establishing liability was the speed of the car at the curve. The testimony of the wife, who was riding in the car, as to its speed, was held incompetent by virtue of G.S. § 8-51 as involving a personal transaction between the witness and the deceased person, because it was an essential or material link in the chain involving liability against the defendant. See also Davis v. Pearson, 220 N.C. 163, 16 S.E.2d 655, which relates to a somewhat similar state of facts. It would seem that the ruling in these two cases was based upon the fact that each plaintiff was a passenger in the car. For a discussion of the Boyd v. Williams case and of the decisions elsewhere as to this point, see 19 NCL 231. We consider these two cases are not applicable to the present case.

Our cases hold that an interested party is not prohibited by G.S. § 8-51 from testifying concerning his independent acts. Johnson v. Rich, 118 N.C. 268, 23 S.E. 1007 (attendance in court as a witness); Jones v. Waldroup, 217 N.C. 178, at page 186, 7 S.E.2d 366; Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342; Stanbury's North Carolina Law of Evidence, p. 130.

It is to be noted that plaintiff gave no testimony as to any words spoken on the three occasions. Applying the principles of law stated above to the facts, we conclude that the plaintiff was competent to testify as to what he saw the deceased Bonnie M. Gregory do and his conduct on the three occasions set forth, because he...