McCurdy v. Ashley, 393

• Decision Date: 14 June 1963
• Docket Number: No. 393,393
• Citation: 259 N.C. 619,131 S.E.2d 321
• Parties: Jessie Lee McCURDY, Adm'x, Bruce Eugene McCurdy, Deceased, v. Dean Smith ASHLEY. Jessie Lee McCURDY, Adm'x, Bradley Eugene McCurdy, Deceased, v. Dean Smith ASHLEY. Tony McCURDY, by his Next Friend Jessie Lee McCurdy, v. Dean Smith ASHLEY.
• Court: North Carolina Supreme Court

Page 321

131 S.E.2d 321

259 N.C. 619

Jessie Lee McCURDY, Adm'x, Bruce Eugene McCurdy, Deceased, v. Dean Smith ASHLEY.

Jessie Lee McCURDY, Adm'x, Bradley Eugene McCurdy, Deceased, v. Dean Smith ASHLEY.

Tony McCURDY, by his Next Friend Jessie Lee McCurdy, v. Dean Smith ASHLEY.

No. 393

Supreme Court of North Carolina.

June 14, 1963

Land, Sowers & Avery by Neil S. Sowers, and W. R. Battley, Statesville, for defendant-appellant.

Hendren & West by L. Hugh West, Jr., Statesville, for plaintiffs-appellees.

PARKER, Justice.

After midday on 9 October 1960 Bruce Eugene McCurdy and his two sons, Bradley Eugene McCurdy nearly six years old and Tony McCurdy about four years and five or six months old (he testified he was six in June 1962), met defendant at a radio station near the town of Mooresville, and all three got in defendant's 1953 Oldsmobile to go to the Lincolnton drag strip. A short time thereafter Adrian Settlemeyer was driving an automobile 40 miles an hour west on Highway 150 near the town of Terrell, in Catawba County. When a black automobile was passing him on his left, defendant's Oldsmobile passed the black automobile on its left, went sliding across the highway in front of Settlemeyer's automobile, slid crosswise into the abutment of a bridge on the highway across a creek, made a half turn, jumped over the creek, hit the ground square on its top, made another half turn, and landed on its wheels. When the 1953 Oldsmobile was in the air after it landed on its top, Bruce Eugene McCurdy was thrown out of it, his body going higher than the Oldsmobile, then hitting the Oldsmobile and landing in a side ditch. When the 1953 Oldsmobile came to rest, Bradley Eugene McCurdy was lying near it, Tony McCurdy was lying under it with his feet protruding, and defendant was lying near the creek. When the Oldsmobile was in the air, it hit a pine tree 12 feet up from the ground.

As a result of his injuries Bradley Eugene McCurdy died at the scene, and his father, as a result of his injuries, died 14 October 1960 without regaining consciousness. In the wreck Tony McCurdy was injured and defendant sustained a broken leg, fractures of all ribs on his left side, and a cut on the back of his head.

There is plenary evidence of actionable negligence on the part of the operator of the 1953 Oldsmobile. The crucial question is who was driving it at the time of the wreck.

Tony McCurdy, who was six years old in June 1962, testified that the defendant Dean Ashley was driving his Oldsmobile when the wreck occurred. Defendant assigns as error the court's holding Tony McCurdy was a competent witness, permitting him to testify as above stated, and not striking out his testimony. These assignments of error are overruled. This little boy's competency to testify as a witness in these consolidated cases was a matter resting in the sound discretion of the trial judge. State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; State v. Gibson, 221 N.C. 252, 20 S.E.2d 51; State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Edwards, 79 N.C. 648.

Speaking to the identical question in Artesani v. Gritton, 252 N.C. 463, 113 S.E.2d 895, Rodman, J., delivering the opinion of the Court said:

'The test of competency is not age but capacity to understand and relate under the obligation of an oath a fact or facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide. [ Citing numerous authority.]'

In Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244, the defendant was adjudged guilty of the crime of murder and sentenced to be hanged. In this case in holding that a boy nearly five and a half years old, a son of the deceased, is competent as a witness the Court said:

'That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous. These rules have been settled by many decisions, and there seems to be no dissent among the recent authorities.'

'Competency is to be determined at the time the witness is called to testify.' Artesani v. Gritton, supra.

Tony McCurdy, in reply to questions put to him on his voir dire, said, among other things, that his mother taught him to say his prayers, and he repeated part of his prayers, that bad boys go down in the ground to the 'boogerman,' that when boys tell lies Jesus does not like them, that he is a good boy and tells the truth, that he goes to school and to church on Sundays. The record shows that in response to the question, 'Do you know the difference between telling the truth and telling stories?' he replied, 'Uh, huh.' After this examination on the voir dire, the court held he was a competent witness.

We see no abuse of discretion on the part of the trial court in holding Tony McCurdy a competent witness and permitting him to testify. The conclusion we have reached is sustained by the following cases, which hold that children of the ages indicated were competent to testify: State v. Merritt, supra, the prosecutrix was a child, who at the time of her ravishment on 6 April 1952 was four years ten months and five days of age, and the time of the trial was the May Term 1952 of Pitt (the date of the time of ravishment is taken from the indictment in the record in the office of the clerk of this Court); State v. Gibson, supra, the prosecutrix was not quite six years of age; State v. Satterfield, supra, a witness was a child seven years old; State v. Edwards, supra, a witness was a child six and one-half years of age at the time of the trial; Whitaker v. Commonwealth, 297 Ky. 279, 179 S.W.2d 448, a witness was a boy five and one-half years of age; Jackson v. State, 239 Ala. 38, 193 So. 417, a witness was a four-year-old boy; Hill v. Skinner, 81 Ohio App. 375, 79 N.E. 2d 787, a witness was a four-year-old child; State v. Juneau, 88 Wis. 180, 59 N.W. 580, 24 L.R.A. 857, the prosecutrix was a little girl who at the time the offense was committed was about four years and nine months old and about five years and five months at the time of the trial; State v. Ridley, Wash., 378 P.2d 700, a witness was a girl who at the time of the trial was five years and four months of age; Lewis v. State, Tex.Cr.App., 346 S.W.2d 608, a witness was a five-year-old girl. See note-- competency of a child as a witness--to Wheeler v. United States, supra, in 40 L.Ed. pp. 244-246. It is interesting to note that in State v. Merritt, supra, the record on file in the clerk's office shows that the little girl, who was prosecutrix, when asked, 'What will happen to you if you tell a story?' replied, 'The boogie man will get me.'

Defendant assigns as error that the court permitted the grandfather and aunt of Tony McCurdy to testify in effect, for the purpose of corroborating Tony McCurdy, that he told them separately that Dean Ashley was driving the automobile at the time of the wreck. As Tony McCurdy was competent to testify as a witness, this testimony of his grandfather and aunt in corroboration is competent. Artesani v. Gritton, supra.

Jessie McCurdy, mother of Tony, testified without objection: '* * * he [Tony] wanted to know why his daddy and his little brother had to die, and he said 'Mama,' he said, 'Dean was driving the car,' * * *.'

Troy Howard was a witness for plaintiffs and testified in substance, except when quoted: He lives near the scene of the wreck. It happened about 2:30 p. m. He went to the scene after the wreck. He saw a man lying near the creek groaning, and stayed with him until the ambulance came. After about 20 minutes of groaning, the man smoked two cigarettes he gave him, and began to relax and was not in such a shock. Howard testified:

'I said to him, 'If you will show me who you are, I will try to get in touch with your family, let your family know.' He said, 'I am Ashley from Statesville.' I asked him what in the world happened. He said, 'I don't know.' I said, 'Who is the man out there in the ditch?' He said, 'I don't know,' said, 'there wasn't anybody with me, I was driving by myself'; then I said, 'There is two little boys up there...