Wilson v. Hartford Acc. & Indem. Co., 685

• Decision Date: 13 December 1967
• Docket Number: No. 685,685
• Citation: 272 N.C. 183,158 S.E.2d 1
• Parties: Norman Gene WILSON v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.
• Court: North Carolina Supreme Court

Page 1

158 S.E.2d 1

272 N.C. 183

Norman Gene WILSON v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 685.

Supreme Court of North Carolina.

Dec. 13, 1967.

Schoch, Schoch & Schoch, High Point, for plaintiff appellant.

Morgan, Byerly, Post & Keziah, High Point, for defendant appellee.

LAKE, Justice.

There is no merit in the assignments of error relating to the admission and exclusion of testimony concerning the extent of the permission granted by Benson to Perdue for the use by Perdue of Benson's automobile.

The questions addressed to the plaintiff's witness, to which objections were sustained, were designed to elicit from the witness what statements she heard, or did not hear, Benson and Perdue make to each other concerning the purpose for which Perdue was permitted to use the automobile and when he was to return it. For example, Mrs. Perdue, if permitted to answer the question, would have testified that she did not hear Benson tell Perdue when, where, how or how long Perdue could use the automobile or specify the time when Perdue was to bring it back. Such testimony was properly excluded not because of the hearsay rule, which the plaintiff, in argument, appears to consider the basis of the ruling, but because the prior testimony of this witness disclosed that she did not purport to know all that Benson and Perdue said to each other on this occasion.

Hearsay evidence consists of the offering into evidence of a statement, oral or written, made by a person other than the witness for the purpose of establishing the truth of the matter so stated. The hearsay rule does not apply to testimony that a particular statement was made by some person other than the witness when the fact sought to be established is the making of the statement itself, as distinguished from the truth of the matter so stated. In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332; Stansbury, North Carolina Evidence, 2d Ed., § 138; Wigmore on Evidence, 3d Ed., §§ 1766, 1770; 29 Am.Jur.2d, Evidence, § 497. Thus, in Hunt v. Maryland Casualty Co., 212 N.C. 28, 192 S.E. 843, where, as here, the question at issue was whether the driver of an automobile was, at the time of the accident, driving with the permission of the insured owner, Schenck, J., speaking for the Court, said:

'The objection and exception to the testimony of the plaintiff's witness Frank Coxe, as to what Richardson said to him at the time Coxe gave Richardson permission to use the automobile, upon the ground that such testimony was hearsay, cannot be sustained, since such testimony was competent to show the purpose for which Coxe permitted Richardson to use the automobile, and the terms of the bailment.'

Thus, the testimony of Miss Delores Perdue, to the effect that she was in a position to hear and did hear her father ask Benson if he could use the automobile and did hear Benson reply 'Okay,' was competent upon the question of the grant of permission to use the car. It is equally well settled that a witness, whose testimony, if true, establishes that she was in a position to hear the entire conversation, may testify that a certain statement was not made therein. That is, a witness, shown to have been in a position to see or hear what occurred, may testify not only to what she saw and heard but also to what she did not see and did not hear. Strong, N.C. Index 2d, Evidence, § 17; Wigmore on Evidence, 3d Ed., § 664; 29 Am.Jur.2d, Evidence, § 258. However, such evidence is not competent unless it has first been shown that the witness was in a position to hear all that was said. As Ervin, J., speaking for the Court, said in Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316, '(A) witness cannot be allowed to testify to the nonexistence of a fact, where his situation with respect to the matter is such that the fact might well have existed without his being aware of it.' Accord: State v. Tedder, 258 N.C. 64, 127 S.E.2d 786; Carruthers v. Atlantic & Y. R.R., 215 N.C. 675, 2 S.E.2d 878; Johnson & Sons, Inc. v. Southern R.R., 214 N.C. 484, 199 S.E. 704; Strong, N.C. Index 2d, Evidence, § 17; Wigmore on Evidence, 3d Ed., § 659.

The testimony of each of the plaintiff's witnesses established clearly the possibility that such witness did not hear the entire conversation between Benson and Perdue with reference to the grant of permission to use the automobile on this...