Pittman v. . Camp

94 N.C. 283

• Court: Supreme Court of North Carolina
• Decided: February 5, 1886
• Status: Published

Opinion

Merrimon, J.

(after stating the facts). The question “where do you live?” and the answer to it, were of slight importance in any view of them. The evidence elicited was not irrelevant, because it tended to identify the witness, and to show in some slight degree, his opportunity to be informed in respect to the matter about which he was testifying. If it tended to impeach the witness at all, as perhaps it did very slightly, it did so remotely and incidentally. The Court did not allow the question to be answered with the view to impeach, nor was the answer so used on the trial. So that, the exception in this respect, cannot be sustained.

The plaintiff testified as to what the defendant said to her intestate in his lifetime, and as to transactions between them, of which she had knowledge. It is obvious that she was not testifying adversely to her intestate, but against the defendant, and he was present and competent to testify in his own behalf, and contradict her. Indeed, he was examined, and did so, and hence suffered no prejudice.

It is not the purpose of the statute, (The Code, §590,) to exclude evidence “concerning a personal transaction or communication ” between a surviving party and a deceased person, where the executor or administrator of the latter sues the surviving party, and offers to testify on the trial as to such “transaction or communication.” The purpose is to prevent the surviving party from testifying in such respect, because, the deceased person, whose estate is to be affected, cannot be present to testify in his own behalf. The statute cited, expressly provides that such evidence cannot be given “except where the executor, administrator, survivor, committee or person so deriving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication.” Peacock v. Stott, 90 N. C., 518.

In this and like cases, the defendant is on the same footing as if the deceased party were alive and testifying in his own behalf. This exception of the appellant is therefore groundless, and the judgment must be affirmed.

No error. Affirmed.