Starr v. . O'Quinn

104 S.E. 66, 180 N.C. 92, 1920 N.C. LEXIS 33

• Court: Supreme Court of North Carolina
• Decided: September 29, 1920
• Status: Published

Opinion

Walker, J.,

after stating the case: The defendants were entitled to notice of the appointment -of the third arbitrator, and the place where the ease would again be heard, and to an opportunity for intro ducing testimony and being beard in tbe ■ case. Tbis is tbe accepted principle (Bray v. Staples, 149 N. C., 89), but it was not observed in tbe trial before tbe arbitrators. Tbe judge, therefore, was right when be held tbe award to be invalid, and be was also right when be proceeded to try tbe case upon its merits with a jury, and refused to remand tbe case to tbe arbitrators. Tbe defendants asked for a trial by jury in their answer, and, having assented to tbe same, they will not now be beard to claim that they were entitled to a trial by tbe arbitrators, taking thereby two chances for success in tbe case. Tbis rule was clearly stated and applied in Brown v. Chemical Co., 165 N. C., 421.

But we are of tbe opinion that tbe learned judge erred in admitting in evidence tbe statement of bis damages filed by plaintiff with tbe arbitrators. It was not used to corroborate tbe witness, S. A. Starr, because be testified to nothing requiring corroboration, nor was it offered for any such purpose. Tbe record merely shows that plaintiff offered tbe statement ás substantive evidence of bis damages, and defendants interposed an objection, which was overruled, and defendants excepted. It was not substantive evidence of tbe truth of its contents, but merely an unsworn declaration, or a statement of bis damages, and it should not have been permitted, to be introduced as evidence to establish tbe quantum of tbe plaintiffs’ damages^ it not being competent for that purpose.

Tbis is sufficient to dispose of tbe appeal, and, therefore, we need not consider tbe other questions, and especially tbe one raised as to tbe rule for assessing plaintiffs’ damages, as it may not be presented on tbe next trial in precisely tbe same form as it is now. If we should express our opinion concerning it, we may find hereafter that wé were deciding hypothetically upon a very important question, and only have “our labor for our pains.” We may refer, without expressing any opinion upon tbe matter, to Sloan v. Hart, 150 N. C., 269, where a somewhat similar question was discussed.

The case will be remanded with directions for a new trial because of tbe error indicated by us.

New trial.