Bunting v. . Salsbury

18 S.E.2d 697, 221 N.C. 34, 1942 N.C. LEXIS 382

• Court: Supreme Court of North Carolina
• Decided: February 25, 1942
• Status: Published

Opinion

WiNbokne, J.

Exceptive assignment to admission of incompetent evidence material to question at issue is well taken.

Upon the trial below the plaintiff’s witness Joe Bunting, on cross-examination, answered as indicated to the following questions:

“Q. Mr. Bunting, it is alleged by the plaintiff, who is your mother in this action, that your father executed to P. L. Salsbury a crop lien in March, 1933, which was in settlement of an agreed amount that your father owed Mr. Salsbury?

“A. In full, it was.

“Q. Were you present?

“A. I was not present when he wrote the crop lien because my daddy did not have a crop. He went there when he was ill and fooled him in it and got him to sign it.”

Defendant moved to strike out the above answers as not responsive. Motion overruled. Exception.

Plaintiff’s witness Ernest Bunting testified: “The only thing I know is that he told me he had been paid in full.” Objection. Question: “Who told you that?” Answer: “My father.” Objection by defendant. Overruled. Exception.

The admission of this testimony is violative of the hearsay rule, under which, subject to well recognized exceptions, testimony as to what, or based upon what the witness had heard a third person say, is incompetent, and should have been excluded. Grandin v. Triplett, 173 N. C., 732, 92 S. E., 392; Matthis v. Johnson, 180 N. C., 130, 104 S. E., 366; Chandler v. Marshall, 189 N. C., 301, 126 S. E., 742; Trust Co. v. Blackwelder, 209 N. C., 252, 183 S. E., 271.

In Matthis v. Johnson, supra, Walker, J., speaking to a similar question, used this language: “The testimony of K. A. Robinson was properly excluded, because he proposed to speak solely of a statement, not only of a third person, but of a person who had since died, which was made to him. This was hearsay and incompetent, it having none of those safeguards required by the law for the maintenance of truth.”

New trial.