Donoho v. Wachovia Bank & Trust Co.

Adams, J. Upon tbe trial of an action a party or a person interested in tbe event shall not be examined as a witness in bis own behalf or interest, or in behalf of tbe party succeeding to bis title or interest, against tbe executor, administrator or survivor of a deceased person concerning a personal transaction or communication between tbe witness and tbe deceased person. C. S., 1795. Conceding tbat tbe transaction occurred between tbe plaintiff’s intestate, tbe witness, and tbe bank officials, we are confronted with tbe question whether tbe testimony of J. E. Nesbitt was improperly admitted. If we adhere to former decisions of this Court we must bold tbat it was. Tbe witness was interested in tbe event of tbe action. He was called by tbe defendant; bis testimony was favorable to tbe defendant ; it was favorable to himself. If be was not authorized to withdraw the money from tbe bank, be nevertheless received it, and would be liable to tbe plaintiff for tbe amount wrongfully withdrawn. He might be liable to tbe defendant. A judgment in favor of tbe defendant would procure direct benefit to tbe witness. This is one test of bis interest in tbe event. Fertilizer Co. v. Rippy, 124 N. C., 643, 646. Tbe result will be tbe same if tbe transaction be treated as a communication between tbe intestate and tbe defendant. Though not a party to tbe action be was under tbe circumstances of this case disqualified to testify. Wilson v. Featherston, 122 N. C., 747; Witty v. Barham, 147 N. C., 479; Harrell v. Hagan, 150 N. C., 242; Grissom v. Grissom, 170 N. C., 97. Tbe fact tbat Nix was present when tbe transaction took place and afterwards testified at tbe trial is immaterial. “Tbe law is explicit tbat tbe one party shall not testify if tbe other cannot, and this without reference to tbe presence of third parties at tbe time of tbe transaction, unless tbe representative is himself examined in bis own behalf, or tbe testimony of tbe deceased person is introduced as to tbe same trans *767 action.” Smith v. Moore, 142 N. C., 277, 284. In Peacock v. Stott, 90 N. C., 518, and in Johnson v. Townsend, 117 N. C., 338, it was shown that the deceased has been jointly interested with another person who was present at the time of the transaction, and who survived. For error in the admission of evidence, there must be a New trial.