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Davis v. Flynn

Filed: June 1, 1982.

SYLVESTER DAVIS AND WIFE, RUTH DAVIS
v.
ALMA M. FLYNN, ADMINISTRATRIX OF THE ESTATE OF OSCAR PEARSON HEGE



Appeal by defendant from Battle, Judge. Judgment entered 4 January 1981 in Superior Court, Davidson County. Heard in the Court of Appeals 3 February 1982.

Morris, Chief Judge. Judges Vaughn and Martin (Harry C.) concur.

Morris

We note at the outset that defendant has failed to include in the record on appeal the issues submitted to the jury and the verdict, in violation of Rule 9(b)(1)(vii) of the Rules of Appellate Procedure. Nor have references to pertinent assignments of error been identified by number in defendant's brief, as required by Rule 28(b)(5). More significantly, over 150 days elapsed between 18 December 1980, when notice of appeal was given, and the filing with this Court of the record on appeal, a breach of Rule 12(a). Even though the appeal is subject to summary dismissal, we choose to treat the purported appeal as a petition for a writ of certiorari which we have allowed, in order to discuss the case on its merits.

Defendant first argues that the trial court erred in allowing plaintiffs, who are interested parties pitted against a party who has died, to give testimony in support of their claim. He cites G.S. 8-51, commonly referred to as the "Dead Man's Statute" as authority for the proposition that each of them should have been disqualified as a "party" and a "person interested in the event" because they both had a direct legal and pecuniary interest in the outcome of the litigation. G.S. 8-51 "prohibits a party, or interested person, from testifying in his own interest against the personal representative of a deceased person about a personal

transaction or communication between the witness and the deceased." Etheridge v. Etheridge, 41 N.C. App. 39, 41, 255 S.E.2d 735, 737 (1979). The performance of services for the deceased by a witness has been held to be a personal transaction. Godwin v. Tew, 38 N.C. App. 686, 248 S.E.2d 771 (1978). For testimony to be competent under the statute, the following four questions must all be answered in the affirmative:

1. Is the witness (a) a party to the action, or (b) a person interested in the event of the action, or (c) a person from, through or under whom such a party or interested person derives his interest or title?

2. Is the witness testifying (a) in his own behalf or interest, or (b) in behalf of the party succeeding to his title or interest?

3. Is the witness testifying against (a) the personal representative of a deceased person, or (b) the committeed of a lunatic or (c) a person deriving his title or interest from, through or under a deceased person or lunatic?

4. Does the testimony of the witness concern a personal transacton or communication between the witness and the deceased person or lunatic?

Peek v. Shook, 233 N.C. 259, 261, 63 S.E.2d 542, 543 (1951). Ruth and Sylvester Davis each testified regarding services rendered the decedent by the other. Neither plaintiff testified in his own behalf or interest. Therefore, the second and fourth inquiries outlined in Peek must be answered in the negative. This renders the statute inapplicable. Bank v. Atkinson and Atkinson v. Bennett, 245 N.C. 563, 96 S.E.2d 837 (1975), Burton v. Styers, 210 N.C. 230, 186 S.E. 248 (1936). Woodard v. McGee and Little v. McGee, 21 N.C. App. 487, 204 S.E.2d 871 (1974), is instructive. There, two plaintiffs claimed the existence of service contracts with the deceased. The deceased allegedly promised each plaintiff $6,000 worth of stock at his death in exchange for the performance of certain services. We upheld in McGee the trial court's exclusion of each plaintiff's testimony regarding his dealings with the deceased, and sanctioned its allowance of testimony as to conversations between the deceased and one of the plaintiffs, brought out by the other plaintiff while testifying. Therefore, we

find, as we did in McGee, that the trial court acted properly in permitting each plaintiff to testify as to services rendered by the other. The fact that the actions were tried together ...


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