Abernathy v. . Skidmore

ClauksoN, J. It is with some reluctance tbat we feel compelled to send this action back for a new trial. Tbe case seems to bave been carefully tried in tbe court below by tbe able and distinguished jurist, who for long years adorned tbe Superior Court bench and has since died. Plaintiffs’ exception and assignment of error No. 2, — “to tbe exclusion by tbe court below of certain evidence as hereafter appears: Mrs. Ollie Herms, witness for plaintiff. “Q. Just state what tbat conversation was? “Objection by defendant, J. M. Skidmore, on the ground tbat this is in purview of C. S., 1795. Counsel states tbat tbe witness is a defendant and an heir at law of tbe grantor, L. D. Jobnston, who is dead. Tbe defendant, Skidmore, objects to anything tbat was said by tbe witness’ father, U. D. Jobnston, on tbe following grounds: Tbat sucb evidence is not admissible. Tbe witness is not competent to testify as to tbe transaction or communication of her father, L. D. Jobnston, because tbe witness is a party defendant and is called as a witness by the plaintiffs; tbat the plaintiffs derive a title through tbe witness, who claims title from her father, L. D. Jobnston; tbat L. D. *69 Johnston is deceased; that the witness proposes to testify as to a transaction or communication with the deceased; that the witness is nominally a defendant, but in fact a plaintiff, as her interest is practically the same as the plaintiffs; that the matter and thing as to which the witness is ashed to testify is not against the interest of the witness, but is in behalf of the interest of the witness and the plaintiffs and is against the interest of the defendant, J. M. Skidmore. “Court: The court having sent the jury' out at this time, the evidence of the witness is taken as follows; that the court may pass on same: “Q. Just state what that conversation was. The conversation that took place between your father and Mr. J. M. Skidmore. State what was said? . “Ans. Well, I heard my father tell Mr. Skidmore he would sell him the tract of land south of this street, the first street below the house, extending west to Dutchman’s Creek, for $225. Mr. Skidmore said he would take it. That is all.” C. S., 1795, is as follows: “Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not.be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic,' by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication.” The question for our decision: Mrs. Ollie Herms is a daughter of L. D. Johnston, from whom the defendant J. M. Skidmore claims title to his land. Skidmore is living, Johnston is dead. Mrs. Ollie Herms, admitting she is interested in the event, is not testifying “concerning a personal transaction,” etc., but is testifying to a conversation had between her dead father and Skidmore. The mischief the statute was passed to prevent was the giving of testimony by a witness interested in the event as to a personal transaction or communication between witness and the deceased person whose lips are sealed in death. Mrs. Herms heard the conversation between her father and • the defendant Skidmore, who is living and a party defendant. We think the testimony *70 competent. Reece v. Woods, 180 N. C., 631; Johnson v. Cameron, 136 N. C., 243; Highsmith v. Page, 161 N. C., 355; Zollicoffer v. Zollicoffer, 168 N. C., 326. We confine our decision strictly to tbe language in tbe statute. We are not inadvertent to tbe interesting situation disclosed in Brown v. Adams, 174 N. C., 490. For tbe reasons given, there must be a New trial.