Lorbacher v. Talley, 675

• Decision Date: 12 January 1962
• Docket Number: No. 675,675
• Citation: 123 S.E.2d 477,256 N.C. 258
• Court: North Carolina Supreme Court
• Parties: P. L. LORBACHER, Jr. v. Walter T. TALLEY T/A Talley's Fruit and Produce Company.

Page 477

123 S.E.2d 477

256 N.C. 258

P. L. LORBACHER, Jr. v. Walter T. TALLEY T/A Talley's Fruit and Produce Company.

No. 675

Supreme Court of North Carolina.

Jan. 12, 1962

Everett, Everett & Everett, Durham, for plaintiff, appellant.

Bryant, Lipton, Strayhorn & Bryant, Durham, for defendant, appellee.

BOBBITT, Justice.

At trial, plaintiff testified in support of his allegations. Defendant, on cross-examination of plaintiff and by evidence in direct contradiction of plaintiff's testimony, sought to impeach plaintiff and thereby discredit plaintiff's testimony. Indeed, the testimony of one witness for defendant was to the effect plaintiff attempted by bribe to induce him to testify in plaintiff's favor.

In rebuttal, plaintiff offered witnesses who, if permitted, would have testified that plaintiff's general reputation in the community was good. Two such witnesses were called to so testify. The court sustained defendant's objections to such testimony. The court, having ruled such testimony incompetent, refused to permit plaintiff to call other witnesses to give testimony of like import. Plaintiff excepted to said rulings.

Defendant contends the court's said rulings were correct, citing Norris v. Stewart's Heirs, 105 N.C. 455, 10 S.E. 912. There the plaintiff alleged that Stewart, the original defendant, by false and fraudulent representations, obtained the signature of the father of the feme plaintiff to a deed of conveyance. Prior to trial, Stewart died and his heirs were made parties defendant in his stead. It was held the court properly excluded testimony, offered by defendant as substantive evidence, that Stewart's general character (reputation) was good. Norris v. Stewart, supra, is in accordance with the rule that, subject to exceptions, evidence of the good or bad character of a party is inadmissible as substantive evidence. Stansbury, North Carolina Evidence § 103.

In Wilson Lumber & Milling Co. v. Atkinson, 162 N.C. 298, 78 S.E. 212, 49 L.R.A.,N.S., 733 the defendant Rabb, charged with fraud, testified as a witness in his own behalf. Thereafter, he offered witnesses who testified to his good general character. The trial judge instructed the jury that the evidence as to Rabb's good general character should be considered 'as substantive as well as corroborative evidence in passing on the issue of fraud.' Citing Norris v. Stewart, supra, this Court held the said character evidence was not competent as substantive evidence and a new trial was awarded on account of the erroneous instruction. But, as stated by Walker, J.: 'It was competent to prove his good character, so far as necessary to sustain his credibility as a witness.'

Where a party testifies, it is competent to show his general reputation as bearing on his credibility as a witness. Nance v. Fike, 244 N.C. 368, 93 S.E.2d 443; Morgan v. Carolina Coach Co., 228 N.C. 280, 45 S.E.2d 339; Kirkpatrick v. Crutchfield, 178 N.C. 348, 351, 100 S.E. 602.

As stated by Smith, C. J., in Jones v....