Jones v. Bailey

• Citation: 99 S.E.2d 768,246 N.C. 599
• Decision Date: 18 September 1957
• Docket Number: No. 30,30
• Parties: Sam W. JONES v. Louise H. BAILEY.
• Court: United States State Supreme Court of North Carolina

Page 768

99 S.E.2d 768

246 N.C. 599

Sam W. JONES v. Louise H. BAILEY.

No. 30

Supreme Court of North Carolina.

Sept. 18, 1957

Meekins, Packer & Roberts, Asheville, for appellant.

Uzzell & DuMont, Asheville, for appellee.

DENNY, Justice.

The defendant's first assignment of error is based on an exception to the admission of certain testimony in the trial below over the defendant's objection. The plaintiff was permitted to testify that after the accident he heard a conversation between the defendant, Mrs. Bailey, and an officer, at the hospital. The testimony of the plaintiff, to which objection was made and exception entered, was as follows: 'Q. What did Mrs. Bailey say? A. As we walked in the hospital, Mrs. Bailey and Mrs. Patton were sitting there and she asked the officer if she had the right of way and the officer said she didn't.' Defendant objected and moved to strike the answer. The objection was overruled and the defendant excepted. 'Q. Anything else? A. The officer told her she didn't have the right of way and she also said, 'I usually wear my glasses and I didn't have my glasses on at that time.' I believe that was all she said. ' Defendant moved to strike that portion of the purported statement to the effect that the officer said she didn't have the right of way. The objection was overruled and the defendant excepted.

This evidence was inadmissible on two grounds. In the first place, it was hearsay evidence to the extent that its value or truthfulness depended in part upon the veracity and competency of some other person. 20 Am.Jur., Evidence, section 451, page 400; Teague v. Wilson, 220 N.C.241, 17 S.E.2d 9; Greene v. Carroll, 205 N.C. 459, 171 S.E. 627; State v. Blakeney, 194 N.C. 651, 140 S.E. 433; State v. Lassiter, 191 N.C. 210, 131 S.E. 577; State v. Springs, 184 N.C. 768, 114 S.E. 851; Chandler v. Jones, 173 N.C. 427, 92 S.E. 145; King v. Bynum, 137 N.C. 491, 49 S.E. 955. Moreover, it is quite clear that the officer to whom the witness referred was not at the time and is not now a party to the action. Neither was he an agent of the defendant. Furthermore, the purported statement is not of such character as to make it a part of the res gestae or to bring it within the rule of a dying declaration or other exception to the hearsay rule. State v. Blakeney, supra.

In the case of State v. Blakeney, supra [194 N.C. 651, 140 S.E. 434], one W. S. Coursey was permitted to testify over objection with respect to the defendant's alleged shortage based on a report given to him by Mr. Latham, chief bank examiner. In granting a new trial based on the admission of the hearsay evidence, Stacy, C. J., in speaking for the Court, said: 'True, the defendant, when he came to testify, was asked about the report of the state bank examiner, and two of the directors of the bank also gave evidence in regard to it, but this did not cure the original error, as the testimony of W. S. Coursey was the keystone in the arch of the state's case.'

In the second place, the purported statement of the officer was inadmissible because it was a declaration of an opinion or conclusion which he would not have been permitted to state as a witness. 20 Am.Jur., Evidence, section 548, page 462. We think this evidence clearly invaded the province of the jury. Broom v. Monroe Coca Cola Bottling Co., 200 N.C. 55, 156 S.E. 152; Cheek v. Barnewell Warehouse & Brokerage Co., 209 N.C. 569, 183 S.E. 729; American Trust Co. v. United Cash Store Co., 193 N.C. 122, 136 S.E. 289; In re Craig's Will, 192 N.C. 656, 135 S.E. 298; Marshall v. Interstate Telephone & Telegraph Co., 181 N.C. 292, 106 S.E. 818.

Whether the plaintiff or the defendant had the right of way at the time they entered the intersection of Park and State Streets was the crucial question to be resolved...