Lytton v. Marion Manufacturing Co.

72 S.E. 1055, 157 N.C. 331, 1911 N.C. LEXIS 51

• Court: Supreme Court of North Carolina
• Decided: December 13, 1911
• Status: Published

Opinion

BROWN, J.

Tbe plaintiff was a machinist in the employment of defendant, and alleges that he was injured while operating a machine lathe by some defect in the mandrel furnished him.

The admission of the following evidence over the defendant’s objection is assigned as error. On his redirect examination the plaintiff was asked the following question by his counsel:

“You testified, Mr. Lytton, in response to Mr. Ryburn’s question, that you were still in the employ of the Marion Manufacturing Company, notwithstanding the fact that you met with this accident and are suing them, and I wish you would tell the court and the jury how it happens that you are still in the employ of that company?”

To this question he replied:

“A. Well, when I came back from the hospital Mr. D. D. Little, the president of the mill, come to me and said, 'Mr. Lyt-ton, I want to know how you feel about this matter,’ and I said, 'Mr. Little, I feel like I am injured for life, and that company is responsible for not furnishing me the proper material.’ He said, 'Yes, Mr. Lytton, I expect you will have to sue, and you ought to have big damage,’ and I said, ‘Mr. Little, I want you to do something for me. I think the company is due me something; if they had furnished me the proper stuff I would not have been hurt. I would have two eyes now if they had give me the right steel in there and tools.’ And he said, 'I am awfully sorry you are injured, and I can’t do nothing for you myself, but don’t be afraid to sue. It don’t come off me. I would like to do something for you, but it’s got to come off the insurance people, and it shan’t have anything to do with your job. If you have to sue, go ahead. I hope you get something.’ ”

This evidence was incompetent, and should have been excluded. It is well settled that the declarations of officers of a corporation are competent only when made in the line of official duty and while the officer is discharging it in reference to a transaction for the corporation. Younce v. Lumber Co., 155 N. C., 241, and cases cited; Rumbough v. Imp. Co., 112 N. C., 751.

In addition to the incompetency of Little’s declarations as mere hearsay, the subject-matter of the. declaration is univer sally beld to be incompetent and disconnected witb tbe inquiry before tbe court.

Evidence tbat tbe defendant in an action for damages arising from an injury is insured in a casualty company is entirely foreign to tbe issues raised by tbe pleadings and is incompetent. By some courts it is beld to be so dangerous as to justify another trial, even when tbe trial judge strikes it from tbe record.

Cosselmon v. Dunfee, 172 N. Y., 509; Loughlin v. Brassil, 187 N. Y., 128, 135; Hordern v. Salvation Army, 124 App. Div., 674, 676, 109 N. Y. Supp., 131; Haigh v. Edelmeyer and M. H. Elevator Co., 123 App. Div., 376, 380, 107 N. Y. Supp., 936; Manigold v. Black River Traction Co., 81 App. Div., 381, 80 N. Y. Supp., 861.

New trial.