Smith v. Stanfield Hosiery Mill, Inc.

Stacy, C. J. We need not pause to inquire whether error was committed in the admission of evidence, which the court stated would be stricken out unless its competency later appeared, for, upon the record *662 as presented it would seem that tbe summation of the complaint, “the dyestuffs were deleterious and poisonous,” when no such allegation appears therein, and the recitation of the contention, “the calves were born with something wrong with them, they were unable to stand or walk and born blind,” when there was no evidence to support such a contention, brings the case within the principle announced in S. v. Love, 187 N. C., 32, 121 S. E., 20, to the effect that where, by the action of the court, evidence material to the issue, which has been excluded, is placed before the jury, without opportunity to answer it or in any way to meet it, necessitates a new trial. Evidence relative to the condition of the young calves was heard by the judge in the absence of the jury, and excluded as being incompetent, so we were told on the argument, yet in delivering his charge to the jury, the judge gives this excluded evidence as the basis of one of plaintiff’s contentions. The testimony undoubtedly found lodgement in the court’s mind, and to have called’ the matter to his attention, as a cor-rectible inadvertence, would only have served to emphasize the error. Bank v. McArthur, 168 N. C., 48, 84 S. E., 39; Medlin v. Board of Education, 167 N. C., 239, 83 S. E., 483; Speed v. Perry, ibid., 122, 83 S. E., 176; S. v. Whaley, 191 N. C., 387, 132 S. E., 6; S. v. Book, 162 N. C., 586, 77 S. E., 759; S. v. Dick, 60 N. C., 440. Where the judge himself fails to disregard incompetent evidence, or to eradicate it from his own mind, it would seem to be asking rather much to require a higher standard of the jury. Its harmful effect is obvious. Credit Corp. v. Boushall, 193 N. C., 605, 137 S. E., 721; Morton v. Water Co., 169 N. C., 468, 86 S. E., 294. For the error, as indicated, the defendant is entitled to another hearing. It is so ordered. New trial.