Young v. Stewart

• Decision Date: 03 March 1926
• Docket Number: 95.
• Parties: YOUNG v. STEWART.
• Court: North Carolina Supreme Court

131 S.E. 735

191 N.C. 297

YOUNG v. STEWART.

No. 95.

Supreme Court of North Carolina

March 3, 1926

Appeal from Superior Court, Vance County; Sinclair, Judge.

Action by I. J. Young against C. A. Stewart. Judgment for plaintiff and defendant appeals. No error.

In absence of agreement on time for arguments, as suggested by judge, refusal to limit argument was within court's discretion.

Action by plaintiff to recover of defendant a diamond. Plaintiff alleges that he is the owner of a diamond, which was lost from the setting on a ring worn by his wife while he and his wife were attending a meeting in a Chautauqua tent in the city of Henderson, N. C.; that this diamond was seen by plaintiff, some time after its loss in the possession of defendant; that plaintiff, after inspecting the diamond, with defendant's permission, informed defendant that the diamond in his possession was the same which plaintiff had lost; that defendant refused to deliver said diamond to plaintiff, although requested by him so to do.

Defendant denies that plaintiff has lost or owns a diamond. He admits that he has in his possession a diamond, and that plaintiff has seen and inspected the same. He alleges that he, and not the plaintiff, is the owner of this diamond.

The issue submitted to the jury was as follows: "Is the diamond in question the property of I. J. Young?" The jury having answered this issue, "Yes," it was adjudged that "I. J. Young recover of C. A. Stewart the diamond in question, now in his possession, and about which this controversy was had, at once, together with costs, to be taxed by the clerk." From this judgment defendant appealed to the Supreme Court.

T. T Hicks & Son, Thos. M. Pittman, and A. A. Bunn, all of Henderson, for appellant.

Perry & Kittrell, Kittrell & Kittrell, and J. P. & J. H. Zollicoffer all of Henderson, for appellee.

CONNOR J.

Plaintiff as a witness in his own behalf, testified:

"Some months ago I saw a diamond in the possession of C. A. Stewart. I examined the diamond. It is mine. The diamond was originally my uncle's and it came to me through his widow's will. It was first in a shirt stud, for shirt or tie. While screwing it in one morning, I twisted it off. Then I had it set in a band ring. I wore it for some time. After I was married, my wife wore it. It was lost in the Chautauqua tent, and we could not find it. My wife was wearing the ring when the diamond was lost. The band was burst on both sides--just the stone was lost. The next time I saw the diamond was when Mr. Stewart had it. I communicated with Mr. Stewart. He very kindly brought it up. I looked at it, my wife looked at it, my brother and sister looked at it. I am positive it is the same stone.

I allege in my complaint that the stone weighed 4 1/2 karats. I know exactly what it weighs--between 3 and 4 karats. I identified the stone in the possession of C. A. Stewart as my diamond by its size, its cut, and by the particular flaw it has through the center. I think I can describe the flaw--it is what a jeweler would call a bubble; do not know whether I could describe it more definitely than that. I think there is another marking--a small scar on the side of it where it was scratched in resetting on one occasion. Mr. Mixon scratched it. I did not see him scratch it. The scratch was on it when it came from him. The scratch was not on it when it went to him.

I wore the stone from 1893 or 1894 until 1900. I was thoroughly familiar with the stone. I state positively that the diamond in question is my stone. It was lost in June, 1923."

On cross-examination plaintiff testified that he was with his wife when she lost the diamond. The following questions and answers appear in the record: "Q. How did you know she had lost it? A. Because she said, 'I have lost the set out of my ring.' Certainly I did not see my wife lose the diamond. If I had, I should have picked it up. It was lost at the Chautauqua tent. My wife was sitting directly behind me. I have not the band now. She has lost that.

Q. How do you know it is lost? A. She told me so."

Defendant, in apt time, objected to the answer to each of the foregoing questions, and moved the court to have same stricken from the record, for that it appeared from said answers that witness was testifying from hearsay, and that this testimony was therefore incompetent. The objection was not sustained, and the motion was denied. Defendant excepted.

Plaintiff on his cross-examination further testified: "The diamond I lost weighed 3 and 51/100 karats. Mahler in Raleigh has weighed it. I saw it weighed within the last two years--since this suit was started.

"Q. You saw the diamond you are suing for weighed? A. Mr. Mahler told me in his store that it weighed 3 and 51/100 karats."

Defendant objects to foregoing answer. Objection overruled. Defendant excepted. There was no motion to strike this answer from the record.

Witness further testified:

"I have seen this diamond weighed in Mahler's store. I have seen the diamond my wife lost weighed in Mahler's store. The diamond I got under the will of my Aunt Pattie Young was weighed by a jeweler in my presence before it was lost. E. E. Hight is the person who weighed it. I do not know whether he is living or not. I saw him weigh it, and did know what it weighed."

"Question by the Court: How did that correspond with the weight of Mahler? (Defendant objects. Objection overruled. Defendant excepted.) A. Very well. Mr. Hight told me that the diamond weighed between three and four karats. Mahler's weight was 3 and 51/100 karats. (Defendant objected. Objection overruled. Defendant excepted.)"

There was no motion to strike this testimony from the record.

Defendant assigns as error the admission of the testimony of plaintiff as evidence: (1) That the diamond and the ring in which it was set were lost for that it appears that this testimony was based solely upon hearsay, to wit, statements made to witness by his wife, who did not testify, and was not sworn as a witness at the trial; and (2) that the diamond which was bequeathed to him by his Aunt Pattie weighed between 3 and 4 karats, and that the diamond which was in defendant's possession weighed 3 and 51/100 karats for that it appears that this testimony was also based solely upon hearsay, to wit, statements made to witness by Mr. Hight and Mr. Mahler, neither of whom testified or was sworn as a witness at the trial.

There was competent evidence, to which there was no objection, that plaintiff was the owner of a diamond, which was bequeathed to him by his aunt, and which had formerly been owned by his uncle. Plaintiff's right to recover the diamond in the possession of defendant was not dependent upon a finding by the jury that this diamond had been lost. If the diamond which defendant admitted was in his possession, and which plaintiff did not deny he had purchased from a third person, was the identical diamond which plaintiff owned, then plaintiff was entitled to recover, regardless of whether it had been lost or not. There was no contention by defendant that, if the jury should find that plaintiff had ever owned the diamond in question, as he alleged, he had ceased to own it. The manner in which it had passed from his possession was immaterial, for it was not contended that he had parted with the title. The question chiefly involved in the issue, to be determined by the jury was whether the diamond in defendant's possession was the same diamond which plaintiff owned, under the will of his Aunt Pattie Young.

The rule with respect to hearsay testimony as evidence is stated by Justice Hoke in State v. Springs, 114 S.E. 851, 184 N.C. 768, as follows:

"With certain recognized exceptions, applicable chiefly in civil causes, and unless expressly made so by statute, hearsay evidence is not competent in the trial of issues determinative of substantive rights, a position particularly insistent where such issues involve the life or liberties of the litigant." Smith v. Moore, 62 S.E. 892, 149 N.C. 185; 1 Elliot on Evidence, §§ 315-319; Greenleaf (16th Ed.) § 99a; Lockhart on Evidence, § 138.

"Evidence, oral or written is called hearsay when its probative force depends in whole or in part upon the competency and credibility of some person other than the witness by whom it is sought to produce it." 11 A. & E. (2d Ed.) 520.

This definition was approved by Justice Brown in King v. Bynum, 49 S.E. 955, 137 N.C. 491, and is cited with approval by Justice Brogden in the recent case of State v. Lassiter, 131 S.E. 577, 191 N.C. 210. The grounds upon which hearsay testimony is excluded as evidence are stated and discussed in the opinion in each of these cases. Justice Brown says:

"There are exceptions to this general rule excluding hearsay evidence laid down in the text-writers on evidence, such as admissions, confessions, dying declarations, declarations against interest, ancient documents, declarations concerning matters of public interest, matters of pedigree and the res gestæ."

Hearsay testimony which does not come within any exception to the general rule of exclusion is incompetent, and should not be admitted. Sloan v. Sawyer, 96 S.E. 39, 175 N.C. 657. If the answer to a question asked on cross-examination of the witness discloses that it is based upon hearsay, and it is not within an exception to the general rule, it should, upon motion made in apt time, be stricken from the record. State v. Green, 122 S.E. 178, 187 N.C. 466; Gilland v. Stone Co., 128 S.E. 158, 189 N.C. 786. If a question addressed to a witness on cross-examination for the purpose of impeachment elicits an answer which is responsive to the question, but which is incompetent, such answer will not be held as...