Price v. Whisnant, 315

• Decision Date: 22 November 1950
• Docket Number: No. 315,315
• Citation: 62 S.E.2d 56,232 N.C. 653
• Court: North Carolina Supreme Court
• Parties: PRICE, v. WHISNANT et al.

Page 56

62 S.E.2d 56

232 N.C. 653

PRICE, v. WHISNANT et al.

No. 315

Supreme Court of North Carolina.

Nov. 22, 1950

Folger Townsend and Fate J. Beal, Lenoir, for plaintiff.

B. F. Williams and Hal B. Adams, Lenoir, for defendants.

DENNY, Justice.

The defendants assign as error the admission of plaintiff's testimony, over objection, to the effect that the defendant A. H. McRary, who is now non compos mentis, sent for him 'quite a few years ago' to meet him at a designated place; that he did so and McRary had Charles Barlow (now deceased), the County Surveyor, to run certain lines, one of which is now in dispute.

We think this evidence coming from the plaintiff was inadmissible. It was evidence concerning a transaction between the witness and the defendant, who is non compos mentis. Such testimony is inhibited by the provisions of G.S. § 8-51. This statute expressly provides that 'a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator or survivor of a deceased person, or the committee of a lunatic * * * concerning a personal transaction or communication between the witness and the deceased person or lunatic * * *.'

W. P. Price, the witness is (a) a party to the action, (b) he is interested in the event of the action, and (c) the defendant A. H. McRary at the time of the trial below had been adjudged non compos mentis, and by reason of this fact was incompetent to testify in his own behalf; therefore, the plaintiff was likewise incompetent to testify in his own behalf concerning any transaction or communication between himself and this defendant. Perry v. First Citizens Nat. Bank & Trust Co., 226 N.C. 667, 40 S.E.2d 116; Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160; Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246; Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549; Poole v. Russell, 197 N.C. 246, 148 S.E. 242. Cf. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648 and Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475. Even so, the witness was permitted to testify thereafter without objection as to where the defendant had the County Surveyor run the disputed line and to testify as to the point where such line began, the bearing and distance thereof; that the line was marked with an axe and that the plaintiff and the defendant A. H. McRary were with the surveyor when the line was run.

The admission of this evidence without objection, rendered harmless the previously admitted evidence of similar import over objection. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. King, 226 N.C. 241, 37 S.E.2d 684; State v. Godwin, 224 N.C. 846, 32 S.E.2d 609. This assignment of error will not be sustained.

The appellants except and assign as error two excerpts from the charge, as follows:

'When the plaintiff has shown a prima facie title, it behooves the defendant to show a superior title. The burden of proof upon this issue is upon the plaintiff. The plaintiff alleges ownership and right to possession and the defendant denies it. Ordinarily the burden of proof never shifts from the plaintiff, but our courts have said that when a plaintiff shows prima facie title, that then the burden of going forward with the evidence shifts to the defendant, and he must then rebut the evidence of the plaintiff. Showing prima facie title does not shift the burden of proof upon this issue, but imposes upon the defendant the burden of going forward with evidence.' Exception No. 39.

'Now, if you are satisfied from the evidence and by its greater weight that the plaintiff received a quitclaim deed which described the property in question, and that he lived on a portion of the property described in the quitclaim deed, and actually occupied a portion of it, then the court instructs you that in that event that the actual occupancy of the plaintiff in such case would be deemed in our law to extend to the outermost limits of the description contained in the quitclaim deed, nothing else appearing, and it would then be necessary for the defendant to satisfy you from the evidence that he has held it adversely for the required statutory period of time. Or, the defendant would have to satisfy you that he has a superior title to the property.' Exception No. 41.

The assignment of error based on the 39th exception challenges the correctness of the court's instruction as to the effect of a prima facie case. We think the instruction is inexact and may have misled the jury. When a plaintiff makes out a prima facie case, it simply means he has offered sufficient evidence in support of his allegations to warrant the submission of his case to the jury, and the jury may, but is not compelled to find for him. However, in such cases, the burden of going forward with the evidence shifts to the defendant, and if the defendant elects to offer no evidence he merely assumes the risk of an adverse verdict. Precythe v. Atlantic Coast Line R., 230 N.C. 195, 52 S.E.2d 360; Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766; Star Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32; McDaniel v. Atlantic Coast Line Ry., 190 N.C. 474, 130 S.E. 208; Speas v. Merchants Bank, 188 N.C. 524, 125 S.E. 398...