Morris v. Beaty Serv. Co

• Decision Date: 14 December 1938
• Docket Number: No. 596.,596.
• Court: North Carolina Supreme Court
• Parties: MORRIS et al. v. BEATY SERVICE CO. et al.

199 S.E. 922

214 N.C. 562

MORRIS et al.

v.BEATY SERVICE CO. et al.

No. 596.

Supreme Court of North Carolina.

Dec. 14, 1938.

Appeal from Superior Court, Union County; W. F. Harding, Judge.

Actions by L. L. Morris, administrator of LeRoy Morris, and others, against the Beaty Service Company and another. The cases were, by consent, consolidated for trial. From a judgment against the Beaty Service Company, the Beaty Service Company appeals.

New trial.

J. Laurence Jones, of Charlotte, E. O. Ayscue, of Monroe, and H. L. Taylor, of Charlotte, for appellant.

Vann & Milliken, of Monroe, for appellees.

SCHENCK, Justice.

There were three actions instituted by the three above named plaintiffs, respectively, against the defendants. The defendant L. J. Prevatte was never served with process in any of the actions. The three cases were, by consent, consolidated for the purpose of trial. From a judgment based on a verdict adverse to it the corporate defendant appealed, assigning error.

The actions were to recover damages for the death of the intestate of one of the plaintiffs and for personal injuries to the other plaintiffs alleged to have been proximately caused by the negligence of the defendants. The corporate defendant, while admitting that the death of LeRoy Morris and injuries to C. P. Medlin and Mildred Medlin were caused by a collision between a heavy motor tractor with trailer attached belonging to it and a Dodge automobile in which the said intestate and plaintiffs were riding, denies that said death and injuries were proximately caused by its negligence, and contends that the sole proximate cause of said collision was the negligence of its code-fendant Prevatte.

The record divulges that near the close of the evidence the corporate defendant tendered to the plaintiffs for the purpose of cross examination one Hanson Sadler, who was the driver of its motor tractor on the occasion of the alleged collision, but who had not up to the time he was tendered been examined as a witness. Whereupon, over objections, exceptions and motions to strike duly made by the plaintiffs, the court allowed the following examination of Hanson Sadler:

"Q. You were convicted of manslaughter for killing LeRoy Morris in this accident, weren't you? A. Yes, sir.

"Q. How long did the Judge sentence you to? A. Sentenced me to two to four years.

"Q. How long did you serve? "Q. Mr. Taylor represented you, didn't he? A. Yes, sir."

We are constrained to sustain the exceptions reserved to this evidence, which constituted all of the testimony of Hanson Sadler. Hanson Sadler had not been before examined as a witness and therefore it was not competent to impeach him. State v. Cox, 151 N.C. 698, 66 S.E. 128.

In...