American Trust Co. v. United Cash Store Co.
136 S.E. 289
N.C.
1927
Check Treatment
Brogden, J.

The first assignment of error relates to the admission of a folder containing letters from railroad officials in regard to demonstrations of the oaf step and commendations thereof and estimates of value of the patent rights, together with letters from distinguished men, certifying to the good character of the officials of the Car Step Company. This testimony was incompetent as hearsay, but in several places in the record the contents of this folder were referred to by witnesses without objection, notably on pages 64, 75 and 87 of the printed record. So that, although the evidence was incompetent in the first instance, the subsequent references to it by both parties without objection cured the error in its admission. Bryant v. Bryant, 178 N. C., 77; *125 Stanley v. Lumber Co., 184 N. C., 302; Cook v. Mebane, 191 N. C., p. 1; Willis v. New Bern, 191 N. C., 507.

The second assignment of. error was to the following question and answer, elicited from the witness, Caudle, who sold the stock to the defendant and secured the note in controversy: Q. Was there any fraud in connection with it ? A. There was not.

The general rule in regard to the expression of opinion by a witness is thus stated in Marks v. Cotton Mills, 135 N. C., 289: “A witness should state facts, the jury should find the facts, and the court should declare and explain the law. The functions of the three within their several spheres are clearly defined and should always be kept separate and distinct. Whether the speeder was so constructed as that its operation wás safe to the defendant’s employees, was the very question upon which the parties were at issue and which the jury were impaneled to decide. The witness’ opinion upon that question was incompetent and the plaintiff’s objection to it should have been sustained.” This principle was fully discussed and applied in Marshall v. Tel. Co., 181 N. C., 292.

In the Marshall case, supra, the Court points out and discusses the exception to the general rule and the principle of law is thus declared: “There is, however, a well-recognized exception to the rule, and 'It includes the evidence of common observers testifying the results of their observations made at the time in regard to common appearances, facts and conditions which cannot be reproduced and made palpable to a jury.’ Britt v. R. R., 148 N. C., 41.” And further, that “the exception has as its foundation, necessity arising from the difficulty, and frequently the impossibility of so placing a number of complicated facts before a jury that the proper deduction may be drawn from them, when a single statement conveying the impression on the mind of the witness of all the facts, the combination considered together constituting a fact, could be easily understood, and the exception is subject to the limitation that the opinion or inference of the witness must not be on the exact issue to be determined by the jury.”

Again, quoting from McKelvy on Evidence, the opinion declares: “The admissibility of such evidence does not extend the case where it would not prove helpful to the jury nor where its application would carry the witness into an expression of real opinion upon matters which it is the jury’s province to decide.” And further: “And the jury ought-to have been permitted to draw the inferences from the evidence instead of the witness.”

The principle declared in the Marshall case was reaffirmed in an opinion by Stacy, J., in Stanley v. Lumber Co., 184 N. C., 307, as follows : “The jury alone was summoned and selected to pass upon this *126 question, and the witness should not have been permitted to express an opinion upon the very matter at issue between the parties.” S. v. Brodie, 190 N. C., 554; In re Craig, 192 N. C., 656.

Applying these established principles to the exception presented by this- record, we are constrained to hold that the exception is well founded and that the opinion of the witness ought to have been excluded from consideration by the jury.

The facts were not complicated but relatively simple, and there was no question involving the observation of complicated conditions. So that this case does not fall within the exception pointed out in the cases referred to. Then, too, the very point at issue in the case was whether or nqt the contract was vitiated by fraud. This was the very question for which the jury was impaneled to pass upon.

We are, therefore, compelled to hold that this testimony was incompetent and that the admission thereof constituted reversible error.

New trial.