Brown v. Whitley , 12 N.C. App. 306 ( 1971 )

BRITT, Judge.

In their first assignment of error defendants contend the court erred in excluding the testimony of defendant Whitley concerning the collision on the ground that said testimony violated G.S. 8-51, commonly referred to as the dead man’s statute. The portion of the statute pertinent to this case provides that “ (u)pon the trial of an action * * * a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the * * administrator * * of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person * * * . ” Was the collision between the tractor operated by defendant Whitley and the automobile operated by decedent a “personal transaction” within the meaning of G.S. 8-51? We hold that it was not.

We are aware that our Supreme Court has held that two occupants of the same automobile are engaged in a “personal transaction” thereby rendering incompetent the testimony of one against the personal representative of the other’s estate. Tharpe v. Newman, 257 N.C. 71, 125 S.E. 2d 315 (1962); Davis v. Pearson, 220 N.C. 163, 16 S.E. 2d 655 (1941) ; Boyd v. Williams, 207 N.C. 30, 175 S.E. 832 (1934). We are also aware of the 1967 amendment to G.S. 8-51 which provides: “Nothing in this section shall preclude testimony as to the identity of the deceased operator of a motor vehicle in any case brought against the deceased’s estate arising out of the operation of a motor vehicle in which the deceased is alleged to have been the operator or one of the operators involved.” But the case at bar presents an entirely different proposition as the Supreme Court indicated in Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801 (1960) when Justice Higgins speaking for the court said: “The decisions of this Court have gone a long way in excluding evidence of a surviving passenger in his action against the estate of the deceased driver based on driver negligence. Our cases, however, have never gone so far as to exclude the evidence of a survivor as to what he saw with respect to the operation of a separate vehicle with which he had a collision.”

We think this case is analogous to Hardison v. Gregory, 242 N.C. 324, 88 S.E. 2d 96 (1955). Hardison was an action for alienation of affections and criminal conversation by a husband against the administrators of the alleged tort-feasor. Plaintiff testified that when he unexpectedly returned to his home one night he found the deceased standing in the living room of the unlighted house, and that on two other occasions he saw his wife and the deceased alone at farm cabins; the court held the evidence competent as testimony of independent facts. In the opinion, written by Parker, Justice (later Chief Justice), we find:

Apparently we have no case directly on all fours, but we have a number of cases that sustain the proposition that G.S. 8-51 does not prohibit an interested party from testifying as to the acts and conduct of the deceased, where the interested party is merely an observer — in other words as to independent facts based upon independent knowledge, not derived from any personal transaction or communication with the deceased. (Numerous citations.)

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Our cases hold that an interested party is not prohibited by G.S. 8-51 from testifying concerning his independent acts. (Citations.)

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It is to be noted that plaintiff gave no testimony as to any words spoken on the three occasions. Applying the principles of law stated above to the facts, we conclude that the plaintiff was competent to testify as to what he saw the deceased Bonnie M. Gregory do and his conduct

on the three occasions set forth, because he was testifying as to independent facts based upon independent knowledge, not derived from any personal transaction or communication with the deceased.

In Hardison, the court has distinguished between acts done with a deceased person and acts done in observing such a person thereby putting the emphasis on the “personal relationship” of the parties. Any acts done in observation of a deceased person apparently are considered “independent acts” and not within the statutory exclusion.

In the instant case the acts of two independent drivers, total strangers to each other up to the point of impact, cannot be said to be acts done with a deceased person but are acts done in observation of a deceased person, thus, testimony as to these acts are not excluded by G.S. 8-51. Defendant Whitley would not be prevented from describing the conduct and movements of the deceased’s car by the phrase “concerning a personal transaction” when the movements were quite independent and apart from, and in no way connected with, or prompted or influenced by reason of, the conduct of the party testifying. 58 Am. Jur., Witnesses, § 250. This view has been adopted by a number of other jurisdictions in the following cases: Harper v. Johnson, 345 S.W. 2d 277 (Tex. 1961) ; Knoepfle v. Suko, 108 N.W. 2d 456 (N.D. 1961) ; Gibson v. McDonald, 265 Ala. 426, 91 So. 2d 679 (1956) ; Turbot v. Repp, 247 Iowa 69, 72 N.W. 2d 565 (1955) ; Shaneybrook v. Blizzard, 209 Md. 304, 121 A. 2d 218 (1956); Christofiel v. Johnson, 40 Tenn. App. 197, 290 S.W. 2d 215 (1956) ; Rankin v. Morgan, 193 Ark. 751, 102 S.W. 2d 552 (1937). Considering the fact that the only relationship between defendant Whitley and decedent was the impact of their vehicles, in light of the distinctions projected in Hardison v. Gregory, supra, and other authorities cited, we conclude that such a collision is not a personal transaction within the meaning of the term, and G.S. 8-51 is not applicable to the testimony of the surviving driver in a two vehicle collision.

There is an additional reason why the excluded testimony was competent as to defendant Pugh’s counterclaim. Assuming that the testimony was inadmissible as to defendant Whitley because of the “personal transaction” portion of the statute, this would not have made it incompetent as to defendant Pugh. We would then be confronted with another portion of the statute requiring an answer to this question: Was defendant Whitley, employed by defendant Pugh as a truck driver, “interested in the event” — the collision— to the extent that he was disqualified to testify with respect to the collision as a witness for defendant Pugh? We hold that he was not.

To be disqualified as a “person interested in the event” the witness must have a direct legal or pecuniary interest in the outcome of the litigation. Allen v. Allen, 213 N.C. 264, 195 S.E. 801 (1938) ; Price v. Askins, 212 N.C. 583, 194 S.E. 284 (1937) ; Burton v. Styers, 210 N.C. 230, 186 S.E. 248 (1936). As to defendant Pugh, defendant Whitley did not have such an interest. Assuming a collision between two motor vehicles is a “transaction” within the meaning of the statute, it has been held that one who has acted as an agent for a third person in a transaction with a person since deceased, is ordinarily competent to testify to conversations or transactions of the decedent. 97 C.J.S., Witnesses, § 180.

Analogous to this case is Smith v. Perdue, 258 N.C. 686, 129 S.E. 2d 293 (1963) in which a husband and his wife filed separate suits for personal services rendered decedents. The suits were tried together and in an opinion by Sharp, Justice, we find:

Over objection, each plaintiff testified for the other. This was permissible procedure and defendant’s assignments of error to the evidence thus elicited are not sustained. We have consistently held that in actions of this kind the relationship of husband and wife does not render the testimony of one for the other incompetent under G.S. 8-51. Burton v. Styers, 210 N.C. 230, 186 S.E. 248; Bank v. Atkinson, 245 N.C. 563, 96 S.E. 2d 837.

The “courts are not disposed to extend the disqualification of a witness under the statute to those not included in its express terms.” Sanderson v. Paul, 235 N.C. 56, 59, 69 S.E. 2d 156, 158 (1952). When there is more than one defendant, testimony which is competent as to one party should not be excluded by virtue of G.S. 8-51 because it is not competent against another party in the suit; the testimony should be limited by proper instructions. Lamm v. Gardner, 250 N.C. 540, 108 S.E. 2d 847 (1959).

Defendants’ remaining assignment of error relates to the granting of plaintiff’s motion for a directed verdict as to defendants’ counterclaims on the ground that defendants failed to show sufficient evidence of actionable negligence on the part of decedent. In allowing the motion, the court did not consider the excluded testimony hereinbefore referred to. Having held that the excluded evidence was admissible, we hold that it, together with other evidence presented, was sufficient to make out a case on defendants’ counterclaims.

For the reasons stated, the portions of the judgment allowing plaintiff’s motion for directed verdicts and dismissing the counterclaims are

Reversed.

Judges Morris and Parker concur.