See 31 C.J.S. Evidence § 193, at 929. Cf. Grand Forks Building Development Co. v. Implement Dealers Mutual Fire Ins. Co., 75 N.D. 618, 31 N.W.2d 495 (1948); Frangos v. Edmunds, 179 Or. 577, 173 P.2d 594, 596 (1946); Greenan v. Ernst, 393 Pa. 321, 143 A.2d 32 (1958); Ennis v. Brawley, 129 W. Va. 621, 41 S.E.2d 680 (1947); Contra: Sellers v. White, 104 Ga. App. 148, 121 S.E.2d 385 (1961). 3. The contention re the co-insurance clause.

The Morsettes argue that the statements of Geneva, as testified to by Mrs. Perhus and Sheriff Dardis, were hearsay and inadmissible as substantive evidence. They cite the following cases in support of their position that the declarations of Geneva at the scene were inadmissible as to her: Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970); Grand Forks B. D. Co. v. Implement Dealers Mutual Fire Insurance Co., 75 N.D. 618, 31 N.W.2d 495 (1948). It is to be noted that the declarations held inadmissible in both of those cases were declarations of nonparties (and thus irrelevant to the issue in this case, which involves admissions by parties).

"The rule excluding hearsay applies to written as well as oral statements." Grand Forks Building Development Co. v. Implement Dealers Mutual Fire Insurance Co., 75 N.D. 618, 31 N.W.2d 495, at 497 (1948). See also Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970).

This Court has followed the majority rule. State v. Snavely, 189 N.W.2d 632 (N.D. 1971); Grand Forks B D Co. v. Implement Dealers Mut. Fire Ins. Co., 75 N.D. 618, 31 N.W.2d 495. The rule has been severely criticized by McCormick on Evidence, Sec. 39, pages 73 to 82. It has also been discarded by the Uniform Rules of Evidence, Rule 20.

Edward Gross's testimony concerning the statement of Allen Leake's son was hearsay. The hearsay rule prohibits use of a person's assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it. Grand Forks B. D. Co. v. Iowa Hardware Mut. Ins. Co., 75 N.D. 618, 31 N.W.2d 495 (1948). See 5 Wigmore on Evidence (3d ed.) §§ 1361, 1364. Allen Leake contends that whether or not the red lens was out at the time of the accident is a material question of fact, determinative as to the contributory negligence by Allen Leake, and whether he complied with the standards set forth in § 39-21-15, N.D.C.C., which requires that every tractor, when operating upon a highway of this state at any time from one-half hour after sunset to a half-hour before sunrise, be equipped with at least one lamp displaying a red light visible, when lighted, from a distance of one thousand feet to the rear of such tractor.

"* * * The testimony of witnesses in open court should go to the jury orally, and not by means of memoranda." See also Grand Forks Bldg. Dev. Co. v. Implement Dealers Mut. Fire Ins. Co., 75 N.D. 618, 31 N.W.2d 495. In the first-cited case ( Commonwealth v. Clark) the rule followed was the Pennsylvania rule that "it is in the discretion of the trial judge as to what papers shall go out with the jury."