Cuthrell v. . Greene

*480 WiNBOKNE, J. Careful consideration of the several assignments of error brought forward and presented on this appeal reveals error prejudicial to plaintiff which necessitates a new trial. In connection with the questions presented it must be borne in mind that the cause of action upon which plaintiff Crichton P. Cuthrell bases this action is an alleged parol trust in her favor, created by Dr. Herbert G. Perry as a condition for changing the beneficiary, and naming defendant as beneficiary, in a certain policy of insurance on his life, in that he required of defendant an agreement that she would pay, out of the proceeds of the policy, the amount of balance due on a deed of trust executed by plaintiffs as security for balance of purchase price on the home of plaintiff. This is not an action to recover on a contract of indebtedness, express or implied, by Dr. Herbert G. Perry to Crichton P. Cuthrell. The issue is whether or not Dr. Perry created the trust in favor of Crichton P. Cuthrell as alleged in the complaint. He either did or did not. And the statute of frauds, G.S. 22-1, providing in substance that an action on a promise to pay the debt of another may not be maintained unless the agreement upon which it is based shall be in writing, and signed by the party charged, or by some other person lawfully authorized, is not applicable to an action on a parol trust. We now come to consider, in the light of the purpose of this action, certain of the exceptions presented by plaintiff. 1. The second exception is to the action of the trial court in overruling objection to this question, three in one, asked plaintiff Crichton P. Cuth-rell on cross-examination by counsel for defendant: “Q. Are you trying to hold somebody else for what he owed you? You brought this suit for what he owed you ? Isn’t that what you are doing ?” These questions are not relevant and pertinent to the issue in the case, and are calculated to prejudice the cause of plaintiff in the minds of the jury. The objection should have been sustained. 2. The third and fourth exceptions are directed to the action of the court in overruling objection to questions asked W. R. Cuthrell, witness for, and husband of plaintiff Crichton P. Cuthrell, on cross-examination by counsel for defendant. After the witness had testified that he is in the insurance business, these questions were asked him: “Q. And you are in it now, and you know about the provision of the North Carolina law which says that you cannot charge a beneficiary of an insurance policy or a man’s life insurance with his debts ?” And, again : “Q. Don’t you know that under the North Carolina law the proceeds of an insurance policy payable to a named beneficiary cannot be charged -with the debts of the deceased?” The import of these questions runs counter to the theory of the alleged cause of action on which the action is based, and, if for no *481 other reason, they are irrelevant, and prejudicial to plaintiff. There is error in not sustaining the objections to them. 3. The sixth exception has its setting in this incident occurring on the trial: “One of the counsel for defendant, during the course of his address, argued to the jury that the defendant, Rebecca Jane Johnson Greene was not required to prove anything or even take the stand and that Rebecca Jane Johnson Greene was pregnant and for that reason did not go upon the witness stand to testify; counsel for the plaintiff objected to this argument to the jury by counsel and asked the court to instruct the jury not to consider such argument as such argument was improper ; motion by the plaintiffs’ attorney was overruled and the defendant’s attorneys were permitted by the court, to argue to the jury that the defendant Rebecca Jane Johnson Greene’s reason for not going on the witness stand was that she was pregnant.” Under the circumstances of this case, we are of opinion, and hold, that the explanation by counsel for defendant as to why she did not go upon the witness stand exceeds the bounds of permissible argument. While wide latitude is given to counsel in addressing the jury, McLamb v. R. R., 122 N. C. 862, 29 S. E. 894, he may not “travel outside of the record” and inject into his argument facts of his own knowledge or other facts not included in the evidence. McIntosh, N. C. P. & P., p. 621; Perry v. R. R., 128 N. C. 471, 39 S. E. 27; S. v. Howley, 220 N. C. 113, 16 S. E. (2) 705; S. v. Little, 228 N. C. 417, 45 S. E. (2) 542; S. v. Hawley, ante, 167, 48 S. E. (2) 35. And when counsel does so, it is the right and, upon objection, the duty of the presiding judge to correct the transgression, S. v. Little, supra, and cases there cited. In the present instance, the court having overruled the objection of plaintiff to the statement being made to the jury by counsel for defendant, the question arises as to whether the statement is prejudicial to plaintiff. Ordinarily, in a civil action, the failure to testify, standing alone, “counts for naught against a party, and the jury should presume nothing therefrom; but when the case is such as to call for an explanation,” McNeill v. McNeill, 223 N. C. 178, 25 S. E. (2) 615, or the evidence is such as to call for a denial, as in the present case, the situation is different. See also Goodman v. Sapp, 102 N. C. 477, 9 S. E. 483; Hudson v. Jordan, 108 N. C. 10, 12 S. E. 1029; Powell v. Strickland, 163 N. C. 393, 79 S. E. 872; Trust Co. v. Bank, 166 N. C. 112, 81 S. E. 1074; Bank v. McArthur, 168 N. C. 48, 84 S. E. 39; In re Hinton, 180 N. C. 206, 104 S. E. 341; Walker v. Walker, 201 N. C. 183, 159 S. E. 363; York v. York, 212 N. C. 695, 194 S. E. 486. Compare Barker v. Dowdy, 224 N. C. 742, 32 S. E. (2) 265. In the present case the failure of defendant to go upon the witness stand to contradict the direct testimony offered by plaintiff as to what Dr. Perry *482 said in her presence, and to her with respect to changing the policy of insurance on his life, and naming defendant as beneficiary under the policy, requiring that, out of the proceeds of the policy, the deed of trust on plaintiff’s home be paid, and as to the agreement by defendant to so pay it, was a circumstance against her to be considered by the jury, and was proper subject of fair comment by counsel for plaintiff in addressing the jury. Goodman v. Sapp, supra; Powell v. Strickland, supra; York v. York, supra. The statement of counsel for defendant, in explanation of why defendant did not go upon the witness stand injected into the case facts or evidence of facts not included in the testimony offered on the trial, and impinged upon the right of plaintiff to have the jury consider the case only in the light of the evidence properly admitted in the course of the trial. Since there is to be a new trial, other exceptions appearing in the record of case on appeal need not be considered. New trial.