Davis v. Flynn , 57 N.C. App. 575 ( 1982 )

291 S.E.2d 818 (1982)

Sylvester DAVIS and wife, Ruth Davis
v.
Alma M. FLYNN, Administratrix of the Estate of Oscar Pearson Hege.

No. 8122SC579.

Court of Appeals of North Carolina.

June 1, 1982.

Grubb & Penry by J. Rodwell Penry, Jr., Lexington, for plaintiffs-appellees.

R. Lewis Ray & Associates by R. Lewis Ray, Winston-Salem, for defendant-appellant.

MORRIS, Chief Judge.

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 committee 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 transaction 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 does not alter the result. Burton v. Styers, supra.

Defendant also asserts that the trial court erred in allowing Ruth Davis to testify as to whether she expected to be compensated for the services she performed for deceased. This contention is without merit. The general rule is that a claimant is incompetent under G.S. 8-51 to testify as to the value of personal services rendered by him to a decedent. Peek v. Shook, supra. Defendant's counsel, however, on cross examination inquired as to services rendered, and elicited from Mrs. Davis her sentiment regarding the remuneration to which she was entitled. Mrs. Davis on redirect then stated that she expected compensation for those services. "The law is that the incompetence of the adverse party to testify may be removed by his being cross-examined as to the transaction in question by the personal representative of the deceased, ... (Citations omitted.)" Smith v. Dean, 2 N.C.App. 553, 561, 163 S.E.2d 551, 556 (1968). We hold that defendant, by cross examining Ruth Davis as to services rendered and the value thereof, "opened the door" for Mrs. Davis to testify regarding her expectation of being compensated, as her testimony on both cross and redirect examination involved the same transaction; i.e., personal services performed for decedent. See Gray v. Cooper, 65 N.C. 183 (1871), and Godwin v. Tew, supra.

Finally, defendant submits that the court erred in compelling the administratrix to testify as to the value of the deceased's estate, on the grounds of irrelevancy and because the probative value of the evidence, if any, was outweighed by its prejudicial nature. We hold that the information was relevant to the value of the services in view of Earlene Harris's testimony that deceased "said he was going to leave whatever he had" to the Davises. Even were we to deem the value of the estate irrelevant, evidence of the value per hour of the plaintiffs' services multiplied by the number of hours the services were rendered overwhelmingly supports the verdict. The admission of the value of the estate, therefore, could not have been prejudicial.

No error.

VAUGHN and HARRY C. MARTIN, JJ., concur.