Boyd v. . Williams
175 S.E. 832
N.C.
1934
Check Treatment
BROgkder, J".

A wife, living with her husband, is riding with him along the highway, in a cfir owned, controlled and driven by the husband. The car fails to make a curve and is apparently wrecked or turned over, killing the husband and seriously injuring the wife. She sues the estate of the deceased husband for damages and is allowed to testify as to violations of the statute regulating the operation of automobiles, and that she made, a statement to her deceased husband at the time “about the rate of speed at which he was driving.”

These facts produce two questions of law:

1. Does C. S., 1795, apply to actions in tort, or is the statute confined to actions on contract?

2. Does the testimony of the wife constitute a transaction or a communication with her deceased husband within the contemplation of said statute?

No case has been called to our attention in this jurisdiction deciding the question as to whether C. S., 1795, applies to tort actions. However, no sound reason occurs to the Court for limiting the application of the statute to actions on contract. Furthermore, the question has been considered in other jurisdictions and the general result of such consideration is expressed in 28 R. C. L., p. 494, as follows: “Ordinarily a statute excluding the testimony of the surviving party, where one of the original parties to a contract or cause of action is dead, applies to an action in tort as well as to an action on contract.” The author of an annotation on the subject in 36 A. L. R., 959, says: “Practically all of the cases within the scope of the present annotation assume that the disqualifying provision may apply to an action ex delicto and is not limited to actions ex contractu.” See Van Meter v. Goldfarb, 148 N. E., 391, 41 A. L. R., 343; Souther v. Belleau, 262 S. W., 619, 36 A. L. R., 956.

Consequently, the first question of law is answered in the affirmative.

The second question of law is not free from difficulty. There is a host of cases construing and interpreting C. S., 1795, and as there is *33 apparently no case directly in point, it would doubtless be both confusing and useless to undertake to dissect the cases or capitulate the various aspects of the statute which they present. A concise statement of the general purpose of the statute is found in the following utterances in Brown v. Adams, 174 N. C., 490, 93 S. E., 989: “It shocks our ideas of fair play thus to place one of the parties at the mercy of the other by allowing one to speak in his own behalf when he is under the power and influence of self-interest, by silencing the other, so that he cannot reply. This is an unjust advantage, not contemplated by the statute.”

Also, in Davidson v. Bardin, 139 N. C., 1, 51 S. E., 779, this Court said: “Under these decisions the plaintiff was competent to testify that she went to the house of defendant’s intestate, and his condition, and what she saw or heard, so long as these were independent facts and did not tend to show a ‘communication or personal transaction’ between her and the deceased, whereby a liability to her, express or implied, would accrue.” The words “whereby a liability to her, express or implied, would accrue” would seem to mean that transactions and communications essential to the cause of action are excluded by the statute. Indeed, an analysis of many cases leads to the conclusion that, where the transactions and communications become an essential or material link in the chain establishing liability against the defendant, the philosophy of the statute, as interpreted and applied in the decisions, would exclude them from the consideration of the jury.

In the case at bar the only evidence of negligence, and thus the only evidence establishing the liability of the deceased, was the speed of the car at the curve. Such operation of the car by the dead husband was certainly a transaction within the broad meaning of that term heretofore pronounced in the decisions. The wife was present in the car and undertakes to recover damages from the estate of the deceased solely by reason of such transaction. Without such evidence she could not recover upon the record in this case. Therefore, it would seem that such personal transaction is one “between the witness and the deceased person.”

The statement of the wife on the witness stand that she made a statement to her husband about the speed of the car at the time of the wreck is clearly an invasion of the statute, because she had previously testified that the speed was excessive.

The Court is of the opinion that the evidence is incompetent and should have been excluded.

Error.

Schenck, J., took no part in the consideration or decision of this case.