Stout v. Valle Crucis, Shawneehaw & Elk Park Turnpike Co.

72 S.E. 993, 157 N.C. 366, 1911 N.C. LEXIS 55

• Court: Supreme Court of North Carolina
• Decided: December 6, 1911
• Status: Published

Opinion

Allex, J.

The exception of the defendant cannot be sustained. There is a presumption in favor of the correctness of tbe ruling of bis Honor, and it is incumbent on the defendant to show that it was erroneous and prejudicial, which it has not done.

We cannot see from tbe record that tbe witness beard the deceased make any statement, or, if one was made, its materiality does not appear, and if a new trial should be ordered, the question might be answered in the negative.

In Knight v. Killebrew, 86 N. C., 402, the Court says: “It is a settled rule that error cannot be assigned in the ruling out of evidence, unless it is distinctly shown what the evidence was, in order that its relevancy may appear, and that a prejudice has arisen from its rejection,” citing Whitesides v. Twitty, 30 N. C., 431; Bland v. O’Hagan, 64 N. C., 471; Street v. Bryan, 65 N. C., 619, and S. v. Purdie, 67 N. C., 326. This ruling has been approved many times. Sumner v. Chandler, 92 N. C., 634; S. v. McNair, 93 N. C., 628; S. v. Rhyne, 109 N. C., 794; Baker v. R. R., 144 N. C., 40.

The case of Watts v. Warren, 108 N. C., 517, relied on by the defendant, cites Knight v. Killebrew with approval, but holds that, under the facts there appearing, the question indicated clearly the evidence excluded.

The action was a creditor’s bill against an administrator, to compel an accounting and settlement, and to set aside an assignment to the defendant of a policy of insurance on the life of the intestate.

“There was evidence tending to prove that the intestate and the defendant administrator were executors of their deceased father’s will, and that the intestate in his lifetime had used very considerable sums of money — how much did not definitely appear — that belonged to legatees of the will, and that the defendant W. A. Warren had paid, and had to pay, the same, etc., and that such payments constituted part of the consideration paid by him for the policy of insurance.”

The defendant was then.examined in his own behalf, and was asked: “What payments have you made to other persons than J. B. Warren, in consideration'of that assignment?”

Having offered evidence that he had paid considerable sums to the legatees, without being able to show ■ definitely the amounts, it was reasonable to infer from the question that he would state the payments made, if allowed to answer.

The defendant does not come within this exception.

There is

No error.