Citizens Bank & Trust Co. v. Reid Motor Co.

5 S.E.2d 318, 216 N.C. 432, 1939 N.C. LEXIS 9

• Court: Supreme Court of North Carolina
• Decided: November 8, 1939
• Status: Published

Opinion

Winborne, J.

Appellants appropriately assign as error: (1) The refusal of the court to strike from the record all of the testimony of the witness Jack Freeze, given on the hearing below, when he declined to submit to further cross-examination; and (2) the admission in evidence of the transcript of testimony of Jack Freeze given in a criminal action against him, to which the defendants were not parties. Decisions of the courts generally support the basic principle upon which these assignments rest.

1. A party has the right to an opportunity to fairly and fully cross-examine a witness who has testified for the adverse party. This right, with respect to the subject of his examination-in-chief, is absolute and not merely a privilege. A denial of it is “prejudicial and fatal error.” Mining Co. v. Mining Co., 129 Fed., 668, 70 C. S., 611; S. v. Hightower, 187 N. C., 300, 121 S. E., 616; Milling Co. v. Highway Com., 190 N. C., 692, 130 S. E., 724; S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Nelson, 200 N. C., 69, 156 S. E., 154.

Where the opposing party, without fault on his part, is deprived of the opportunity of a cross-examination, it is generally held that he is entitled to have the direct testimony stricken from the record. “This doctrine rests on the common law rule that no evidence should be admitted but what was or might be under the examination of both parties and that ex parte statements are too uncertain and unreliable to be considered in the investigation of controverted facts.” 28 R. C. L., 600. Witnesses, sec. 189.

While the question has not been the subject of decision in this State, courts of other states uniformly hold that where a witness refuses to answer pertinent questions on cross-examination, his testimony on direct examination should be stricken out. 70 C. J., 618. Thomas v. Dower, 162 Wash., 54, 297 P., 1094; Millikan v. Booth (Okla., 1896), 46 P., 489; Cumberland R. Co. v. Girdner, 174 Ky., 761, 192 S. W., 873; McElhanon v. State (Ga.), 26 S. E., 501; Martin v. Elden, 32 Ohio St. Rep., 282; Lowery v. Ry. Co., 248 Ill. App., 306; Gallagher v. Gallagher, 87 N. Y. S., 343, 92 App. Div., 138, 15 N. Y. Ann. Cas., 35; Beardsworth v. Whitehead, 122 N. Y. S., 31, 137 App. Div., 306.

Where cross-examination is prevented by illness or death of witness, after direct examination, the same rule applies. Wray v. State (Ga.), 45 So., 697; Sperry v. Moore (Mich.), 4 N. W., 13.

2. The admissibility in evidence of testimony taken in another action depends not only upon the identity of the question being investigated, but upon the opportunity of the party against whom the evidence is offered, to cross-examine. Hartis v. R. R., 162 N. C., 236, 78 S. E., 164; McLean v. Scheiber, 212 N. C., 544, 193 S. E., 708; Milne v. Sanders (Tenn.), 228 S. W., 702.

In the Milne case, supra, a proceeding under Workmen’s Compensation Act, the Supreme Court of Tennessee, through McKinney, J., speaking to the question, said: “We are of opinion that the court properly excluded the transcript of the record in the criminal action. The plaintiffs in the present case were not parties to the criminal case, had no opportunity to cross-examine witnesses in the latter case, nor to introduce evidence to rebut that offered by the State.”

Applying these principles to the case in hand, when the witness Jack Freeze refused to submit to further cross-examination after a few immaterial questions were asked, the failure of the court to strike out the testimony given by him on examination-in-chief is error. Likewise, the transcript of testimony of Freeze in criminal action is incompetent and inadmissible, and should have been excluded.

It appears on the face of the record that the findings of the Industrial Commission are based upon the testimony of Jack Freeze. The hearing Commissioner says, “There is enough evidence, however, from him in the record to justify the finding that the accident suffered by the injured employee causing his death arose out of and in the course of the said employee’s employment by the Reid Motor Company.” Findings of fact of the Industrial Commission, when supported by competent evidence, are binding on Superior and Supreme Courts. Decisions of this Court, in so holding, are uniform. But when it appears specifically that findings of fact are founded upon incompetent evidence, such findings are not conclusive, and must be set aside. The proceeding will be remanded to the Industrial Commission for further consideration in accordance with usual course and practice.

Reversed and remanded.