Lambros v. Zrakas

66 S.E.2d 895, 234 N.C. 287, 1951 N.C. LEXIS 443

• Court: Supreme Court of North Carolina
• Decided: October 17, 1951
• Docket: 101
• Status: Published

Opinion

JohnsoN, J.

Tbe defendants’ chief exceptive assignment of error relates to tbe refusal of tbe court below to nonsuit tbe case as to tbe defendant Sophie Zrakas.

It is alleged in the complaint that both defendants, “acting by and through their son and agent Charles Zrakas, engaged and employed tbe . . . services of plaintiff for medical diagnosis . . . and . . . surgical treatment upon defendant Mrs. Sophie Zrakas.”

It is admitted in the defendants’ answer that “the defendant Thomas K. Zrakas, acting by and through his son Charles Zrakas, engaged and employed the professional services of the plaintiff, for the treatment of said defendant’s wife.”

The plaintiff, testifying as a witness in his own behalf, related the details of the several conferences he had with Charles Zrakas in working out preliminary and final arrangements for the diagnosis and treatment, including conferences both before and after Mrs. Zrakas arrived in Washington for the operation. He also stated that he talked with Mrs. Zrakas at length the night before the operation. The plaintiff then testified that “He (Charles Zrakas) said he was acting both for his mother and his father.” This testimony was received in evidence without objection. Therefore, though it is hearsay and also embraces the declaration of the alleged agent (Parrish v. Mfg. Co., 211 N.C. 7, 188 S.E. 817), it went to the jury for its full evidentiary value. S. v. Fuqua, ante, 168, 66 S.E. 2d 667; Maley v. Furniture Co., 214 N.C. 589, 200 S.E. 438; Webb v. Rosemond, 172 N.C. 848, 90 S.E. 306.

Dean Wigmore states the rule this way: “The initiative in excluding improper evidence is left entirely to the opponent, — so far at least as concerns his right to appeal on that ground to another tribunal. The judge may of his own motion deal with offered evidence; but for all subsequent purposes it must appear that the opponent invoked some rule of Evidence. A rule of Evidence not invoked is waived.” Wigmore on Evidence, 3d Ed., Yol. I, Sec. 18, p. 321.

The reasons for this rule are succinctly stated in this excerpt from Cady v. Norton, 14 Pick. 236 (Mass.) :

“The right to except (i.e., object) is a privilege, which the party may waive; and if the ground of exception is known and not seasonably taken, by implication of law it is waived. This proceeds upon two grounds; one, that if the exception is intended to be relied on and is seasonably taken, the omission may be supplied, or the error corrected, and the rights of all parties saved. The other is, that it is not consistent with the purposes of justice for a party, knowing of a secret defect, to proceed and take his chance for a favorable verdict, with the power and intent to annul it as erroneous and void, if it should be against him.” Wigmore on Evidence, 3d Ed., Yol. I, Sec. 18, p. 322.

The foregoing testimony of the plaintiff, when considered with the rest of the evidence in the case, was sufficient to warrant the jury in finding the issue of agency against the feme defendant.

The rest of defendants’ exceptive assignments of error relate to rulings of the court on the reception of evidence. We have examined these exceptions and find them to be without substantial merit. Prejudicial error has not been made to appear. Fisher v. Waynesville, 216 N.C. 790, 4 S.E. 2d 316; Rogers v. Freeman, 211 N.C. 468, 190 S.E. 728.

We are left with the impression that the defendants have had a fair trial at the hands of a jury drawn from their own vicinage. The verdict and judgment will be upheld.

No error.

ValeNtinb, J., took no part in the consideration or decision of this case.