164 N.C. 5 | N.C. | 1913
We will first consider the exception to the refusal Of his Honor to permit counsel for the defendant to argue that
If the failure of the son to contribute to the support of the mother is a relevant circumstance, and the mother is a competent witness to prove the fact, there is error in the ruling.
1. Is the mother a competent witness to prove the fact of support ?
The only objection urged against her competency is under section 1631 of the Eevisal.
An accurate and comprehensive analysis of this section will be found in Bunn v. Todd, 107 N. C., 266, where the present Chief Justice says:
“It disqualifies
WHOM — 1. Parties to the action.
2. Persons interested in the event of the action.
3. Persons through or under whom the persons in the first two classes derive their title or interest.
A witness, although belonging to one of these classes, is incompetent only in the following cases: '
WHEN — To testify in behalf of himself, or the person succeeding to this title or interest against the representative of a deceased person, or committee of a lunatic, or any one deriving his title or interest through them.
And the disqualification of such person, and in even such cases, is restricted to the following—
SUBJECT-MATTER — As to a personal transaction or communication between the witness and the person since deceased or lunatic.
And even- to those persons and in those cases there are the following—
EXCEPTIONS — When the representative of, or person claiming through or under, the deceased person or lunatic is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction. Burnett v. Savage, 92 N. C., 10; Sumner v. Candler, 92 N. C., 634.”
2. Is the failure of the son to contribute to the support of the mother a relevant circumstance?
We held in Dooley v. R. R., 163 N. C., 454, that an action may be .maintained under the Federal statute in behalf of a parent when there is a reasonable expectation of pecuniary benefit from the continuance of the life of the child, although the child has not contributed to the support of the parent, and the authorities which support this principle also hold that evidence of contributions by the child to the support of the parent is material- and important in determining whether such reasonable expectation exists, and in the assessment of damages which may be recovered, and .if such evidence is material and competent for the parent, the defendant may prove the contrary.
The mother is not only a competent witness, but in all probability the only witness, who would know all the facts, and it is held in Hudson v. Jordan, 108 N. C., 12, “that the introduction or nonintroduction of a party as a witness in his own behalf is the subject of comment exactly as the introduction or nonintroduction of any other witness would be.”
The conduct of counsel in presenting their causes to juries is left largely to the discretion of the trial judge, and that this discretion has been exercised liberally is shown by the following excerpt from 38 Cyc., 1471, where the author says: “Counsel may bring to- his use in the discussion of the case well established historical facts, and may allude to such principles of divine law relating to transactions of men as may be appropriate to the case. He may argue matters of which judicial notice is- bound to be taken, and state matters which the law presumes, and he may indulge in impassioned bursts of oratory, or what he may consider oratory, so long as he introduces no facts not disclosed by the evidence. It is not impassioned ora- , tory which the law condemns and discredits in the advocate, but the introduction of facts not disclosed by the evidence. It
It does not seem tbat counsel in tbis case exercised all bis privileges; but however tbis may be, tbe discretion vested in tbe judge does not “include tbe right -to deprive a litigant of tbe benefit of bis counsel’s argument, when it is confined within proper bounds and is addressed to the material facts of tbe cáse.” Puett v. R. R., 141 N. C., 335.
We are, therefore, of opinion tbat tbe ruling of bis Honor was erroneous, and tbat it constitutes reversible error, because tbe defendant was not only deprived of tbe argument of its counsel on a material matter, but tbe error was accentuated when bis Honor refused to charge tbe jury, at tbe request of tbe defendant, tbat there was no evidence tbat tbe son gave any part of' bis earnings to bis mother, and assumed in bis charge there was sucb evidence, when there was none, by saying, “You will consider bow much of bis earnings be spent on himself or otherwise, either for necessities; or for other purposes, as distinguished from what be spent on or even gave to bis mother, if you find from tbe evidence tbat be contributed anything from bis earnings to bis mother.”
Tbe defendant was also entitled to have tbe jury instructed, as requested, tbat if tbey found from tbe evidence-that tbe defendant engineer was not negligent, bis acts and conduct would not support an answer to the first issue in favor of tbe plaintiff, and should not be considered in determining tbe liability of tbe railroad company.
We at first thought tbis might be treated as harmless, in view of the fact tbat tbe jury found tbat tbe engineer was not negligent and could not, therefore, be presumed to base their findings of negligence against tbe defendant company upon bis acts and conduct; but it not only appears tbat tbe prayer was refused, but also tbat bis Honor charged the jury: “If any of tbat negligence, or any negligence which resulted in tbe death of tbe intestate, was caused by tbe negligence of any one of tbe crew who was on tbat train, and it was tbe proximate cause — ■
Tbe charge given is, of course, predicated upon a finding of negligence, but it fails to direct the minds of tbe jurors to tbe facts in controversy or to exclude tbe conduct of tbe engineer if be was not negligent.
.The principal benefit to be derived from a charge to tbe jury is not tbe statement- of propositions of law, but tbe elimination of irrelevant matters, and causes of action or allegations as to which no evidence has been offered, and thereby let tbe jury understand and appreciate tbe precise facts that are material and determinative.
As said by Merrimon, C. J., in S. v. Wilson, 104 N. C., 873: “The jury should see tbe issues, stripped of all redundant and confusing matters, and in as clear a light as practicable.”
Tbe prayer for instruction is a correct statement of tbe law upon an aspect of tbe case presented by tbe evidence, and as said by Justice Walker in Baker v. R. R., 144 N. C., 42: “We bave held repeatedly that if there is a general charge upon tbe law of the case1, it cannot be assigned here as error that tbe court did not instruct tbe jury as to some particular phase of tbe case, unless it was specially requested so to do. Simmons v. Davenport, 140 N. C., 407. It would seem to follow from this rule, and to be inconsistent with it if we should not so bold, that if a special instruction is asked as to a particular aspect of tbe case presented by tbe evidence, it should be given by tbe court with substantial conformity to tbe prayer.”
There must, therefore, be a new trial as between tbe plaintiff and tbe railroad company.
- We bave not discussed tbe refusal to submit an issue as to assumption of risk, because Ave expressed our views on this- ques
We have set out the charge of his Honor on the issue of damages in full, because it involves a new question and is clear, accurate, and comprehensive, as applied to the facts of this case, but would, of course, have to be modified to fit other facts.
New trial.
