Archer v. Norwood

BROCK, Chief Judge. Respondents first assign error to the introduction into evidence of the contents of letters written by respondent Leroy Norwood. Respondents contend that the letters, which contained virulent attacks on petitioners Archer, were calculated to incite hostility on the part of the jury toward Leroy Norwood, and were thus prejudicial to respondents’ case. This assignment of error must be overruled. The central issue before the jury was the authenticity of the instruments purporting to lease and grant purchase options covering portions of deceased’s land to Leroy Norwood. The letters in question covered a time span from July 1966 through January 1973. Portions of the letters dealt with Leroy Norwood’s claims against the estate of Hazeleen N. Johnson. Yet the first mention of the contested instruments and purported receipts for payment of sums of money to deceased occurred in a letter dated August 1972. The failure of Leroy Norwood to mention sooner these instruments and receipts and the claims they represented was a circumstance for consideration by the jury in the process of determining the authenticity of the instruments. Admittedly, large portions of the letters were irrelevant to the matter in controversy. Respondents lodged a general objection to the introduction of the letters, without requesting that the judge exclude the irrelevant portions thereof. Under these circumstances, admission of the letters in their entirety was not error. See Clayton v. Insurance Co., 4 N.C. App. 43, 165 S.E. 2d 763 [435] (1969). Respondents’ assignments of error numbers 2 and 9 are overruled. Assignments of error numbers 3, 10, 14, 15 and 17 deal with the admission of testimony of petitioner Barbara Worick and another witness, Zora Armstrong, to the effect that the deceased did not possess certain sums of money on certain dates, and to the trial judge’s instructions with respect to such testimony. These assignments of error are without merit. Respondents contend that the testimony of Barbara Worick was incompetent by virtue of the dead man’s statute, G.S. 8-51. We disagree. G.S. 8-51 prohibits an interested party from testifying under certain circumstances concerning a personal transaction or communication with a deceased person. However, the statute does not prohibit an interested party from testifying as to acts and conduct of the deceased where the interested party was merely an observer. Hardison v. Gregory, 242 N.C. 324, 88 S.E. 2d 96 (1955). The witness was asked whether she observed Hazeleen N. Johnson with sums of cash on certain dates during the period of time when the deceased was residing with the witness. The witness did not testify as to any personal transactions or communications with the deceased. Thus, the testimony of Barbara Worick was not barred by G.S. 8-51. As a second ground for objection, respondents contend that the testimony of Barbara Worick and Zora Armstrong was inadmissible negative testimony. Negative evidence is not inadmissible merely because it is negative. 1 Stansbury’s North Carolina Evidence § 82, p. 252 (Brandis Rev. 1973). Upon a showing that a witness was in a position to know of the existence of a fact had it been true, negative testimony as to the non-existence of the fact is not incompetent. 6 Strong’s N.C. Index 3d, Evidence, § 17. There was testimony which tended to show that both witnesses were familiar with decedent’s financial condition and were in a position to know whether decedent possessed large sums of money on the days in question. The weight to be accorded this negative testimony was a question for the jury. 1 Stansbury’s, supra, § 82. We hold that the negative testimony of which respondents complain was properly admitted by the trial judge. It follows that instructions as to this evidence were proper. The assignments of [436] error discussed by respondents in their second argument are overruled. By their next grouping of assignments of error, numbers 4, 5 and 6, respondents contend that the trial court erred in admitting the testimony of three attorneys which respondents contend related to matters protected by the attorney-client privilege. This argument is without merit. The attorneys testified in order to authenticate letters written by them on behalf of Leroy Norwood. These letters were then introduced into evidence. These letters, which were sent to various of the parties to this action, and in one instance to petitioners’ attorney, obviously were not confidential communications between Leroy Norwood and the respective attorney so as to fall within the attorney-client privilege. See 1 Stansbury’s, supra, § 62. Respondents’ assignments of error numbers 4, 5 and 6 are overruled. We have fully and carefully examined respondents remaining assignments of error, and have found them to lack merit. Assignments relating to denial of respondents’ motions for directed verdict, and to instructions to the jury, were dependent upon our agreeing with respondents as to the evidentiary questions discussed supra. Discussion of these and the other remaining assignments of error would be of little use to the bench or bar. No error. Judges CLARK and WEBB concur.