Howell v. . Harris

16 S.E.2d 829, 220 N.C. 198, 1941 N.C. LEXIS 508

• Court: Supreme Court of North Carolina
• Decided: October 15, 1941
• Status: Published

Opinion

Stacy, C. J.

The evidence offered by the plaintiff tending to show what the agent of the Bus Company testified in the Mayor’s Court was properly excluded as against the corporate defendant. Hester v. Motor Lines, 219 N. C., 743. What an agent or employee says after an event, merely narrative of the past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as substantive evidence against the principal or em ployer. Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802, and cases there cited. Nor is such evidence competent to prove the fact of agency or the scope of tbe agent’s authority or that the alleged agent was acting for his principal or employer at the time. Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817.

It appears, however, that when the court came to charge the jury, this evidence was inadvertently recited as tending to show that the agent was then about his master’s business. The evidence had previously been excluded as incompetent for this purpose and it was error thus to recite it in the charge. It has been said in a number of cases that where, by action of the court, evidence material to the issue, which has been excluded, is placed before the jury, without opportunity to answer it or in any way to meet it, necessitates a new trial. S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473; Smith v. Hosiery Mill, 212 N. C., 661, 194 S. E., 83; S. v. Love, 187 N. C., 32, 121 S. E., 20.

No error has been discovered in the trial so far as the individual defendant is concerned.

Opposite conclusions, therefore, result in respect of the two appellants:

On appeal of Lyles Harris,

No error.

On appeal of Queen City Coach Company,

New trial.