Jones v. Bailey

99 S.E.2d 768 (1957)

246 N.C. 599

Sam W. JONES v. Louise H. BAILEY.

No. 30.

Supreme Court of North Carolina.

September 18, 1957.

*769 Meekins, Packer & Roberts, Asheville, for appellant.

Uzzell & DuMont, Asheville, for appellee.

DENNY, Justice.

The defendant's first assignment of error is based on an exception to the admission of certain testimony in the trial below over the defendant's objection. The plaintiff was permitted to testify that after the accident he heard a conversation between the defendant, Mrs. Bailey, and an officer, at the hospital. The testimony of the plaintiff, to which objection was made and exception entered, was as follows: "Q. What did Mrs. Bailey say? A. As we walked in the hospital, Mrs. Bailey and Mrs. Patton were sitting there and she *770 asked the officer if she had the right of way and the officer said she didn't." Defendant objected and moved to strike the answer. The objection was overruled and the defendant excepted. "Q. Anything else? A. The officer told her she didn't have the right of way and she also said, `I usually wear my glasses and I didn't have my glasses on at that time.' I believe that was all she said." Defendant moved to strike that portion of the purported statement to the effect that the officer said she didn't have the right of way. The objection was overruled and the defendant excepted.

This evidence was inadmissible on two grounds. In the first place, it was hearsay evidence to the extent that its value or truthfulness depended in part upon the veracity and competency of some other person. 20 Am.Jur., Evidence, section 451, page 400; Teague v. Wilson, 220 N.C. 241, 17 S.E.2d 9; Greene v. Carroll, 205 N.C. 459, 171 S.E. 627; State v. Blakeney, 194 N.C. 651, 140 S.E. 433; State v. Lassiter, 191 N.C. 210, 131 S.E. 577; State v. Springs, 184 N.C. 768, 114 S.E. 851; Chandler v. Jones, 173 N.C. 427, 92 S.E. 145; King v. Bynum, 137 N.C. 491, 49 S.E. 955. Moreover, it is quite clear that the officer to whom the witness referred was not at the time and is not now a party to the action. Neither was he an agent of the defendant. Furthermore, the purported statement is not of such character as to make it a part of the res gestae or to bring it within the rule of a dying declaration or other exception to the hearsay rule. State v. Blakeney, supra.

In the case of State v. Blakeney, supra [194 N.C. 651, 140 S.E. 434], one W. S. Coursey was permitted to testify over objection with respect to the defendant's alleged shortage based on a report given to him by Mr. Latham, chief bank examiner. In granting a new trial based on the admission of the hearsay evidence, Stacy, C. J., in speaking for the Court, said: "True, the defendant, when he came to testify, was asked about the report of the state bank examiner, and two of the directors of the bank also gave evidence in regard to it, but this did not cure the original error, as the testimony of W. S. Coursey was the keystone in the arch of the state's case."

In the second place, the purported statement of the officer was inadmissible because it was a declaration of an opinion or conclusion which he would not have been permitted to state as a witness. 20 Am.Jur., Evidence, section 548, page 462. We think this evidence clearly invaded the province of the jury. Broom v. Monroe Coca Cola Bottling Co., 200 N.C. 55, 156 S.E. 152; Cheek v. Barnwell Warehouse & Brokerage Co., 209 N.C. 569, 183 S.E. 729; American Trust Co. v. United Cash Store Co., 193 N.C. 122, 136 S.E. 289; In re Craig's Will, 192 N.C. 656, 135 S.E. 798; Marshall v. Interstate Telephone & Telegraph Co., 181 N.C. 292, 106 S.E. 818.

Whether the plaintiff or the defendant had the right of way at the time they entered the intersection of Park and State Streets was the crucial question to be resolved by the jury from the evidence before they could correctly and properly answer the issues submitted to them.

The appellee contends, however, that when the defendant went upon the stand and denied that she made any inquiry of the officer as to whether or not she had the right of way at the time of the accident and called the officer as a witness in her behalf, who testified that he had no recollection of having said anything to Mrs. Bailey at the hospital, that their testimony made the testimony of the plaintiff competent for the purpose of contradicting or impeaching the testimony of the defendant and her witness, citing Hopkins v. Colonial Stores, 224 N.C. 137, 29 S.E.2d 455.

Consequently, the appellee contends that when the defendant offered evidence to contradict his testimony, she lost the benefit of her exception to the admission of such evidence. We do not concur *771 in this view. Moreover, any statement in the opinion of Hopkins v. Colonial Stores, supra, that may be inferred to be in conflict with this opinion, on this particular point, is disapproved. It is the well established rule with us that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost, but as stated by Brogden, J., in Shelton v. Southern R. Co., 193 N.C. 670, 139 S.E. 232, 235: "The rule does not mean that the adverse party may not, on cross-examination explain the evidence or destroy its probative value, or even contradict [it] with other evidence upon peril of losing the benefit of his exception." State v. Godwin, 224 N.C. 846, 32 S.E.2d 609; State v. Tew, 234 N.C. 612, 68 S.E.2d 291.

The defendant is entitled to a new trial and it is so ordered.

New trial.