Sumner v. . Candler

Ashe, J. (after stating the facts). The first exception taken by the defendant was to His Honor’s refusal to allow the testimony of the defendant, as to the reason why nothing was said when he- and the plaintiff’s intestate met near the mill. There was no error in the ruling of His Honor in that respect. He told the witness, he might testify as to the transaction or communication with the deceased. The fact that the witness did not proceed to testify, was evidence -that what he proposed to say was not about tlie transaction or communication that was testified to by the plaintiff, and besides it is a well established rule of evidence, that error cannot be assigned in the ruling out of evidence, unless it is distinctly shown “what the evidence was, in order that its relevancy may appear, and that a prejudice has arisen from its rejection,” and in this case it does, not appear what the rejected evidence was, and we cannot see that it was pertinent or material. Knight v. Killebrew, 86 N. C., 400; Bland v. O’Hagan, 64 N. C., 471. Nor was there any error in the ruling upon the ground of the second exception. The plaintiff, as the administrator of Jesse Sumner, had introduced a witness who testified to a conversation between his intes *637 tate and the defendant. The defendant then offered bimself as a witness to explain or contradict the testimony of the plaintiff’s witness. As a party to an action, one may be admitted to testify in his own behalf under section 342, C. C. P., section 589 of The Code. But by section 343, C. C. P., section 590 of The Code, he is excluded from the right of being examined as a witness in his own behalf, against the executor, administrator, &c., of a deceased person. There is, however, an exception to this rule contained in the proviso, that when the executor or administrator, &c., is examined as a witness in his own behalf, or the testimony of the deceased person is given in evidence in regard to the same transaction or communication. In such a case it is held the door is opened, and the opposing party may offer himself as a witness and testify in regard to the same transaction or communication. But the plaintiff has not offered himself as a witness in his own behalf as to the conversation between his intestate and defendant, as testified to by Jesse Sumner, nor had he offered in evidence any testimony of his intestate. The testimony, therefore, was clearly excluded by section 590 of The Code. The remaining exception, to the refusal of the Court to admit the defendant to testify for all purposes, was equally untenable. When a party to an action is admitted to testify in his own behalf under the proviso or exception in the section 590 of The Code, the testimony is restricted to the same transaction or communication as testified to by the opposite party. It does not contemplate opening the door so wide as contended for by the defendant. There is no error. The judgment of the Superior Court of Buncombe county is affirmed. No error. Affirmed.