From Casetext: Smarter Legal Research

McLean v. Scheiber

Supreme Court of North Carolina
Nov 1, 1937
193 S.E. 708 (N.C. 1937)

Opinion

(Filed 24 November, 1937.)

Evidence § 29 —

The record of the testimony of a plaintiff in a former action against defendants is incompetent in a subsequent action brought by another plaintiff who was not a party to the former action, even though the actions arise out of the same automobile accident, since the present plaintiff had no opportunity to cross-examine the plaintiff in the former action.

APPEAL by defendant Scheiber from Rousseau, J., at May Term, 1937, of MECKLENBURG. No error.

C. H. Gover, William T. Covington, Jr., and Hugh L. Lobdell for plaintiff.

Robinson Jones for defendant.


This was an action to recover for medical and hospital expenses incurred and for lost services of the minor son of plaintiff's intestate, alleged to have resulted from the negligence of the defendant in the operation of an automobile. Robert Pearson was not served with summons.

The jury answered the issues in favor of the plaintiff, and from judgment on the verdict defendant Scheiber appealed.


The principal question presented by the appeal was as to the admissibility of the transcript of the testimony of the son of plaintiff's intestate taken in another action, in which the son was plaintiff in a suit against these same defendants for damages for personal injury suffered by him on the identical occasion here alleged ( Jackson v. Scheiber, 209 N.C. 441, 184 S.E. 17). It appeared that in the other case the plaintiff's intestate, Essie Jackson, was not a party, and in the trial in which the son's testimony was taken had no right or opportunity to cross-examine him. The rule was laid down in Hartis v. Electric R. R., 162 N.C. 236, 78 S.E. 164, that the admissibility of evidence taken in another case depends upon the identity of the question being investigated and upon the opportunity of the party against whom the evidence is offered to cross-examine. For that reason it would seem that the ruling of the court below must be sustained.

We have examined the other exceptions noted by appellant, and find in them no substantial merit.

In the trial we find

No error.


Summaries of

McLean v. Scheiber

Supreme Court of North Carolina
Nov 1, 1937
193 S.E. 708 (N.C. 1937)
Case details for

McLean v. Scheiber

Case Details

Full title:CARRIE L. McLEAN, ADMINISTRATRIX OF ESTATE OF ESSIE JACKSON, DECEASED…

Court:Supreme Court of North Carolina

Date published: Nov 1, 1937

Citations

193 S.E. 708 (N.C. 1937)
193 S.E. 708

Citing Cases

State v. Small

Second, "the party against whom the former testimony is now offered, or a party in like interest, must have…

Parrish v. Bryant

Wigmore on Evidence, Third Ed., Vol. 5, Sections 1386 and 1387; 31 C.J.S., Evidence, Sec. 385. See also Bank…