Cook ex rel. Cook v. Edwards, 198 N.C. 738 (1930)

May 28, 1930 · Supreme Court of North Carolina

198 N.C. 738

HERBERT SPILLMAN COOK, by His Next Friend, F. W. COOK, v. A. B. EDWARDS.

(Filed 28 May, 1930.)

Evidence P c — Admission of father made before Ms appointment as next friend is not admissible against infant plaintiff.

Where a father qualifies as next friend and brings action for his infant child to recover damages of the defendant for negligently running his automobile upon the child, evidence of the admissions of the father made before his- appointment as next friend are not admissible against the infant plaintiff, and their admission over the objection of the plaintiff is reversible error.

Civil a.ctioN, before Clement, J., at November Term, 1929, ■ of AnsoN.

Tbe plaintiff, at tbe time of bis injury, was an infant about three and one-balf years old, and tbe father of said infant was duly appointed as next friend to prosecute an action for damages against tbe defendant.

Tbe evidence tended to show that about 4:30 o’clock on tbe afternoon of 28 January, 1929, tbe plaintiff was run over and injured by an automobile owned and operated by tbe defendant. Tbe injury occurred in tbe residential portion of tbe town of Lilesville. There was evidence tending to show that tbe defendant stated that as be was proceeding down tbe street be saw an approaching car and “I knew I bad to bit tbe child or tbe car. I bit tbe child.” The defendant denied making any such statement and offered evidence tending to show that tbe child jerked loose from some one who was bolding bis band and suddenly ran into tbe side of defendant’s automobile, and that tbe injuries received were not due to any negligence on tbe part of defendant, but solely to tbe sudden and unanticipated conduct of tbe child.

Issues of negligence and damages were submitted to tbe jury, and tbe jury answered tbe issue of negligence _against tbe plaintiff.

From judgment upon tbe verdict plaintiff appealed.

McLendon & Covington, 0. M. LitaJcer and Walter Clark for plaintiff.

M. W. Nash for defendant.

BeogdeN, J.

Tbe defendant was asked tbe following question on direct examination: (Q.) “What did Mr. Cook say to you with reference to this accident?” (A.) “He expressed regret that it happened, and I told him tbe reason I was in Lilesville, and be asked me not to let tbe accident have any effect on me moving to Lilesville and for me to come right on over; that be realized it was an unavoidable accident.”

The foregoing evidence was admitted over the objection of plaintiff, and the ruling of the court is assigned as error.

W. C. Cook was the father of plaintiff and afterwards was appointed next friend to prosecute the suit for and in behalf of plaintiff. Therefore, the question of law presented is whether the admission of a parent before he is appointed next friend to prosecute an action for a minor child is admissible in evidence.

The general rule is thus expressed in 22 O. J., 353, section 408: “Admissions of a guardian ad litem or next friend are not competent to affect the interest of the person whom the declarant represents in the action.” Our court has adopted the same view of the law, stated as follows, in Coble v. Coble, 82 N. C., 339: “The admission therefore of a guardian, or of an executor or administrator made before he was completely clothed with that trust, or of a prochem ami made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself as the representative of the heirs, devisees and creditors in the other.” Neff v. Cameron, 18 A. L. R. (N. S.), 320; Strother v. R. R., 123 N. C., 197, 31 S. E., 386; Daugherty v. Taylor, 140 N. C., 446, 53 S. E., 296; Shuford v. Cook, 169 N. C., 52, 85 S. E., 142, 1 R. C. L., 486, sec. 22.

Applying these established principles to the facts, it is apparent that the admission of the next friend of the infant plaintiff, madé before his appointment, to the effect that the injury was the result of “unavoidable accident” was inadmissible and incompetent, and the objection to such admission is sustained.

New trial.