12 N.C. App. 149 | N.C. Ct. App. | 1971
Plaintiffs first assign as error the hearing commissioner’s refusal to admit portions of an adverse examination of E. J. Sachs, employer’s president and general manager. The record indicates that the hearing commissioner regarded the adverse examination as a deposition and refused to admit portions offered by plaintiffs for that Mr. Sachs had testified in one of the hearings and resided within 75 miles of the place of the hearing. Plaintiffs contend that while the adverse examination (or deposition as claimed by defendants) was taken on 2 January 1968 that it was offered into evidence at a hearing on 28 May 1970, therefore, the admissibility was governed by Rule 26(d) (1) of the Rules of Civil Procedure, G.S. 1A-1.
The assignment of error is sustained. We think Rule 26(d) (1) applies and that the portions of the Sachs’ examination offered by plaintiffs should have been received in evidence. G.S. 1A-1. Ch. 954, Sec. 10, 1967 Session Laws as amended by Ch. 803, Sec. 1, 1969 Session Laws.
Plaintiffs assign as error the exclusion of certain testimony of the widow. Plaintiffs offered testimony of Mrs. Gay to the effect that on Thursday night prior to the fatal accident on Friday night, Joseph called her over the telephone from Kentucky; that he called to let her know that he would be home that weekend; that there had been a change in plans; “that Mr. Sachs had asked him to come in.” The obvious purpose of the testimony was to show that Joseph was coming to Greensboro not only to see his family but at the request of his employer. The hearing commissioner sustained defendants’ objection to the testimony but permitted it entered into the record. Thereafter defendants’ counsel cross-examined Mrs. Gay about the telephone conversation; defense counsel asked her if her husband did not state that he was coming home for purpose of bringing Mrs. Gay a new car. Following the cross-examination, plaintiffs reoffered Mrs. Gay’s direct testimony, contending that the cross-examination regarding the telephone conversation made the portion offered by plaintiffs admissible.
The assignment of error is sustained. When defendants’ counsel attempted by cross-examination of Mrs. Gay to establish defendants’ contention as to why Joseph was coming home on the night of his death, counsel “opened the door” as to the por
Plaintiffs assign as error the refusal of the hearing commissioner to admit into evidence testimony of Marvin Farmer relating to a telephone call allegedly received by Joseph on Wednesday evening from Mr. Sachs. Over defendants’ sustained objection, Farmer testified for the record that he and Joseph were eating supper, that the manager of the motel came over and told Joseph that he had a long distance phone call; that in a few minutes Joseph returned and stated that Sachs had called and “he guessed he would go home; he (Sachs) wanted him to come in something about the job.” This evidence was clearly inadmissible and the assignment of error is overruled.
Plaintiffs assign as error the exclusion of testimony by Connie Baines to the effect that on Friday afternoon before the fatal accident that night, he was with Joseph at a motel in Kentucky; that he (Baines) left in another automobile a few minutes before Joseph left; that Joseph said that he had to “go in because Mr. Sachs wanted him to bring some papers.” Plaintiff contends that this evidence was admissible as part of the res gestae.
The assignment of error is sustained. We hold that the evidence was admissible but not necessarily as a part of the res gestae. The evidence appears to meet the requirements set forth in Little v. Brake Company, 255 N.C. 451, 121 S.E. 2d 889 (1961) ; moreover, it is strikingly similar to the evidence which the Supreme Court declared admissible in the very recent case of State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). In State v. Vestal, supra, in the opinion written by Lake, Justice, we find the following: “The sound basis for its admission is not the res gestae doctrine, but the exception to the hearsay rule permitting the admission of declarations of a decedent to show his intention, when the intention is relevant per se and the declaration is not so unreasonably remote in time as to suggest the possibility of a change of mind.”
• In their remaining assignments of error, plaintiffs contend that the hearing commissioner erred (1) in failing to make
Taking into consideration the aggregate of the evidence we think was erroneously excluded, we cannot say that plaintiffs were not prejudiced thereby; therefore, we vacate the order appealed from and remand the proceeding to the Industrial Commission. In its further deliberations the commission will consider the evidence offered by plaintiffs and declared by us to have been erroneously excluded.
Error and remanded.
