Pulliam v. Hege, 192 N.C. 459 (1926)

Nov. 3, 1926 · Supreme Court of North Carolina
192 N.C. 459


(Filed 3 November, 1926.)

Evidence — Deceased Persons — Cross-Examination, — Statutes — Transactions and Communications — Appeal and Error — Objections and Exceptions.

It is incompetent as a transaction with a deceased person (0. S., 1795), in an action against his estate to recover for services rendered him under a contract, for the plaintiff to testify as to personal services rendered by her as coming within her demand for damages, though brought out on her cross-examination, when the answer so elicited was not necessarily called for and exception was duly entered.

Appeal by plaintiff from Oglesby, J., at September Term, 1926, of FORSYTE.

Civil action to recover for board and services rendered Mrs. Emma Stevenson, now deceased, tried in tbe Forsytb County Court, where verdict and judgment was entered in favor of plaintiff; and on appeal to tbe Superior Court tbe cause was remanded for another bearing for error in tbe admission of evidence. From this order, tbe plaintiff appeals, contending that no reversible error was committed by tbe county court.

Parrish & Peal and W. J. Swaim for plaintiff.

Swinh, Clement, Hutchins & Feimster for defendant.

Stacy, C. J.

Tbe plaintiff, in her original complaint, sought to recover of tbe defendant tbe sum of $3,304.00 for services rendered Mrs. Stevenson during her lifetime. Later tbe amount was changed to $6,-500.00. On cross-examination, tbe plaintiff was asked why she bad practically doubled her demand. Her answer was that she bad omitted one year’s account, and her services were really worth more.

In further explanation, tbe witness continued: “I done so much for her '(objection as this involves a personal transaction; overruled; exception) ; I bad to wait on her, ‘tote’ meals to her (objection; overruled ; exception); I done everything I could for her and she promised me something and I thought I ought to have something.” Motion to strike out; overruled; exception.

This evidence related to a personal transaction or communication between tbe interested witness and tbe deceased. It was, therefore, incompetent under C. S., 1795. Tbe fact that it was limited to an explanation of why tbe plaintiff amended her complaint and asked for a larger sum does not render it competent. Tbe statute excludes it for all purposes. *460We do not think the defendant “opened the door” by asking plaintiff for an explanation as to why she bad changed the amount of her demand. Williams v. Cooper, 113 N. C., 286. The question related to a matter which took place after the institution of the present suit.

The cause was properly remanded for a new trial.