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Burns v. McElroy

Filed: May 18, 1982.

ANN A. BURNS
v.
PENDER R. MCELROY, ADMINISTRATOR C.T.A. UNDER THE WILL AND FOR THE ESTATE OF MAUDE H. BARNETT, DECEASED



Appeal by plaintiff from Allen, Judge. Judgment entered 29 April 1981 in superior Court, Mecklenburg County. Heard in the Court of Appeals 29 April 1982.

Hedrick, Judge. Judges Hill and Becton concur.

Hedrick

Based on Assignments of Error numbered 3, 4, and 5, plaintiff contends that the trial court erred in "not submitting certain issues" to the jury and in its instructions to the jury with respect to plaintiff's claim for services.

"The issues to be submitted to the jury are those raised by the pleadings and supported by the evidence." Johnson v. Massengill, 280 N.C. 376, 384, 186 S.E. 168, 174 (1972). "The duty of the judge is to declare the law arising on the evidence and to explain the application of the law thereto. Rule 51(a) of the Rules of Civil Procedure." Link v. Link, 278 N.C. 181, 198, 179 S.E.2d 697, 707 (1971). "The chief purpose of a charge is to aid the jury in clearly understanding the case and in arriving at a

correct verdict . . . [and to ensure] that the verdict represents a finding by the jury under the law and upon the evidence presented." Warren v. Parks, 31 N.C. App. 609, 612, 230 S.E.2d 684, 687 (1976), disc. rev. denied, 292 N.C. 269, 233 S.E.2d 396 (1977). "The record on appeal in civil actions . . . shall contain . . . so much of the evidence . . . as is necessary for understanding of all errors assigned." Rule 9(b)(1), N.C. Rules of Appellate Procedure. In the present case, none of the evidence is reproduced in the record, nor has a transcript of the testimony been provided. We are therefore unable to evaluate the assignments of error relating to the instructions and issues. The appellant has the burden of showing error in the trial court's judgment. Brown v. Boney, 41 N.C. App. 636, 255 S.E.2d 784, disc. rev. denied, 298 N.C. 294, 259 S.E.2d 910 (1979). With respect to these assignments of error, she has failed to do so.

Plaintiff next assigns error to the trial judge's refusal to allow plaintiff to testify with respect to the circumstances surrounding the deceased's delivery to plaintiff of the $4,544.83 check. The testimony of the plaintiff, heard by the judge on voir dire, is reproduced in the record as follows: Barnett first delivered the check to plaintiff on a Friday to keep for her over the weekend; plaintiff returned the check to Barnett on the following Monday; Barnett fractured her hip that Monday and was hospitalized; while at the hospital and after undergoing surgery, Barnett endorsed the check and asked plaintiff to cash it for her and put the proceeds in plaintiff's safety deposit box until she was able to get out of the hospital; Barnett told plaintiff that if anything happened to her, that she wanted plaintiff to have the proceeds of the check. Pursuant to Barnett's instructions, plaintiff cashed the check and put the proceeds in her safety deposit for safekeeping. Barnett died two days later.

It seems clear that the trial judge excluded this testimony about communications and transactions between plaintiff and the now-deceased Barnett on the grounds that it violated the "Dead Man's Statute," G.S. § 8-51. The plaintiff argues that the court erred in excluding such testimony in that the defendant "opened the door" for plaintiff's proffered testimony when defendant himself, in response to the allegation in plaintiff's complaint that Barnett "gave to the plaintiff the sum of $4,544.83 with the request that she hold his [sic] money for her in safekeeping," admitted

in an allegation in his answer that "Barnett delivered to Plaintiff the sum of" $4,544.83.

"The law that an interested survivor to a personal transaction or communication cannot testify with respect thereto against the dead man's estate is intended as a shield to protect against fraudulent and unfounded claims. It is not intended as a sword with which the estate may attack the survivor," Carswell v. Greene, 253 N.C. 266, 270, 116 S.E.2d 801, 804 (1960); hence, G.S. § 8-51 contains an exception to the prohibition of the survivor's testimony when "the executor . . . is examined in his own behalf." This exception is designed to prevent the estate from using G.S. § 8-51 as both a shield and a sword.

In the present case, it is not at all clear that the allegation in defendant's answer, being merely part of the pleadings in the case, constitutes his being "examined in his own behalf." First, the allegation did not amount to testimony by the defendant and, hence, did not amount to his being "examined" at trial. Second, the answer's allegation of delivery by Barnett to the plaintiff is not necessarily an allegation favorable to the defendant executor, insofar as it does imply that plaintiff's possession of the check was at least initially authorized by Barnett; hence, the allegation was not really on the executor's "own behalf." Furthermore, even if this allegation did constitute a binding admission of delivery, such an admission by defendant of a fact initially broached by plaintiff can hardly amount to defendant's use of the "Dead Man's Statute" as a sword against plaintiff. Finally, the door is opened to the survivor's testimony only when the executor "is a voluntary witness testifying in his own behalf, and not when he is forced upon the witness stand to testify against his interest." Sorrell v. McGhee, 178 N.C. 279, 281, 100 S.E. 434, 435 (1919). "A party does not have it in his power to remove his own incompetency by calling the administrator as a witness and examining him concerning the transaction in controversy." 1 Stansubury's N.C. Evidence, § 75, 229 (Brandis rev. 1973). Under G.S. § 1A-1, Rule 8(b), a defendant, ...


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