Sledge v. Wagoner
| Decision Date | 12 June 1959 |
| Docket Number | No. 529,529 |
| Citation | 250 N.C. 559,109 S.E.2d 180 |
| Parties | Willard Robert SLEDGE v. Bryce WAGONER, P. E. Hodges and J. Bernard Parker, t/a Bus Terminal Restaurants and Modern Grill. |
| Court | North Carolina Supreme Court |
Ottway Burton and Don Davis, Asheboro, for plaintiff, appellant.
James B. Lovelace, High Point, for defendants, appellees.
As in Maddox v. Brown, 233 N.C. 519, 521, 64 S.E.2d 864, 865, where the rules applicable are fully stated, decision turns on 'whether the evidence on the retrial was substantially the same as, or materially different from, that adduced at the previous trial. ' See Jernigan v. Jernigan, 238 N.C. 444, 78 S.E.2d 179, and cases cited.
The evidence relating to the cause and circumstances of plaintiff's fall consists of plaintiff's testimony. Except as stated below, it is substantially the same as his testimony at the trial at November Term, 1957, set forth in detail by Johnson, J., in the opinion in Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195. Variations in small particulars need not be discussed.
At the first trial, pertinent to his contention that the passageway was obstructed, plaintiff testified he could 'open the door 24 inches from the door facing to the corner of the table,' and when he pushed on the door it opened just wide enough for him to 'sidle in.' At the second trial, plaintiff testified: 'The width of that door from jamb to jamb is 36 inches. ' Again: 'From the right-hand door facing to the corner of the table was forty-seven inches. ' Again: 'With those chairs here you could open it around thirty-one inches the way the chairs were occupied. ' Again: ' He did not use the phrase, 'sidle in,' or testify that he could not or did not open the door sufficiently wide to enable him to walk into the restaurant without coming in contact with the magazine and newspaper rack. We need not determine whether these variations, standing alone, are sufficiently material to require decision contrary to that reached on the former appeal.
According to plaintiff's testimony, the 'little snag' or 'spur,' on which the cuff of his right trouser leg caught, was approximately three inches from the floor and 'anywhere from a half to three-quarters of an inch' in length. The complaint alleged 'That the side of the projecting rod was too small to detect by the plaintiff, but that it was large enough to catch in his pants leg * * *. ' He testified he first observed the 'snag' from his position on the floor after he fell. The plaintiff had been in this restaurant almost daily during the six months preceding his fall.
At the first trial, plaintiff testified, without objection, that Wood, the restaurant manager, told him that 'he ought to have moved that magazine rack before somebody got hurt. ' On former appeal, this was referred to as 'the crucial evidence' relative to foreseeability as an element of proximate cause, which, 'with other corroboratory evidence suffices to make the question of foreseeability one for the jury.'
At the second trial, on objection by defendants, the court excluded this proffered testimony: When asked what statement, if any, Wood made with reference to the rack, plaintiff answered: 'He said, 'I am going to move this before somebody else gets hurt'; said 'It ought to have been moved before, it is too close to the door.' ' Plaintiff insists that this testimony as to Wood's declarations was competent and should now be considered. (Note: At the second trial, plaintiff did not testify or proffer testimony that Wood then moved the rack and carried it out and said he was going to dispose of it.)
Wood worked in defendants' restaurant and served plaintiff on many occasions. On September 3, 1955, plaintiff entered the restaurant and ordered a cup of coffee. Wood served him. Plaintiff left his coffee on the counter and went (through the swinging door) into the waiting room in order to check the bus schedule. He fell when he re-entered the restaurant. Plaintiff testified:
Plaintiff assigns as error the exclusion of evidence offered to show that Wood was the manager of defendants' said restaurant.
Plaintiff's testimony that Wood said he was the manager was incompetent and properly excluded. '* * * extrajudicial declarations of an alleged agent are inadmissible to establish either the fact of agency or its nature and extent, such statements being regarded as hearsay and offered for the purpose of proving the truth of the factual matter therein asserted. ' Parrish v. Boysell Manufacturing Co., 211 N.C. 7, 11, 188 S.E. 817, 819, and cases cited; Commercial Solvents, Inc. v. Johnson, 235 N.C. 237, 69 S.E.2d 716.
The agreed case on appeal states: 'Plaintiff offered into evidence a portion of an unverified and unsigned purported copy of a purported reporter's transcript (attached hereto as plaintiff's Exhibit 'H') of the testimony of one Bryce Wagoner at a hearing before the Clerk upon a motion in a civil action entitled: 'Willard Robert Sledge, Plaintiff v. Bus Terminal Restaurant of North Carolina, Inc., defendant.' ' There was no testimony that Bryce Wagoner, a defendant in the present action, made the statements attributed to him in answers set forth in the portion of the purported copy of purported transcript offered by plaintiff. Moreover, there was no identification of this transcript by the person who purportedly prepared it. Under these circumstances, this proffered evidence was properly excluded.
Too, the court properly excluded plaintiff's Exhibit 'I,' a paper purporting to be an affidavit of J. Bernard Parker, a defendant herein. No testimony was offered to identify the signature of J. Bernard Parker. Moreover, its exclusion did not prejudice plaintiff. Indeed, it sets forth that the said restaurant in High Point was one of the restaurants operated by defendants herein as partners, trading under the firm name of Bus Terminal Restaurants of North Carolina, and that Wood was an employee of the High Point restaurant.
The evidence suffices to show that Wood was an agent of defendants. We consider now whether, as contended by plaintiff, the exclusion of plaintiff's testimony concerning Wood's declarations was erroneous.
Clearly, the statement or remark attributed to Wood was not competent as a spontaneous statement or utterance. VI Wigmore on Evidence, 3rd Ed., § 1746; Stansbury,...
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...were not competent to prove the agency of the declarant. Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817; Sledge v. Wagoner, 250 N.C. 559, 109 S.E.2d 180. Even if it be conceded that declarant was respondent's agent, there was no showing that the quoted statements were within the scop......
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