Lambros v. Zrakas, 101
| Decision Date | 17 October 1951 |
| Docket Number | No. 101,101 |
| Citation | 66 S.E.2d 895,234 N.C. 287 |
| Court | North Carolina Supreme Court |
| Parties | LAMBROS, v. ZRAKAS et al. |
Gardner, Connor & Lee and Lucas & Rand, Wilson for defendants-appellants.
Carr & Gibbons, Wilson, for plaintiff-appellee
The defendants' chief exceptive assignment of error relates to the refusal of the court below to nonsuit the case as to the defendant Sophie Zrakas.
It is alleged in the complaint that both defendants, 'acting by and through their son and agent Charles Zrakas, engaged and employed the * * * services of plaintiff for medical diagnosis * * * and * * * surgical treatment upon defendant Mrs. Sophie Zrakas.'
It is admitted in the defendants' answer that 'the defendant Thomas K. Zrakas, acting by and through his son Charles Zrakas, engaged and employed the professional services of the plaintiff, for the treatment of said defendant's wife.'
The plaintiff, testifying as a witness in his own behalf, related the details of the several conferences he had with Charles Zrakas in working out preliminary and final arrangements for the diagnosis and treatment, including conferences both before and after Mrs. Zrakas arrived in Washington for the operation. He also stated that he talked with Mrs. Zrakas at length the night before the operation. The plaintiff then testified that 'He (Charles Zrakas) said he was acting both for his mother and his father.' This testimony was received in evidence without objection. Therefore, though it is hearsay and also embraces the declaration of the alleged agent (Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817), it went to the jury for its full evidentiary value. State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667; Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438; Webb v. Rosemond, 172 N.C. 848, 90 S.E. 306.
Dean Wigmore states the rule this way: Wigmore on Evidence, 3d Ed., Vol. I, Sec. 18, p. 321.
The reasons for this rule are succinctly stated in this excerpt from Cady v. Norton, 14 Pick., Mass., 236: ...
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...objection. ' Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208, 23 S.Ct. 294, 296, 47 L.Ed. 446. Johnson, J., in Lambros v. Zrakas, 234 N.C. 287, 66 S.E.2d 895, 896, quotes Wigmore as follows: 'The initiative in excluding improper evidence is left entirely to the opponent,--so far at ......
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