Caudill v. NATIONWIDE MUT. INS. CO. OF COLUMBUS, OHIO , 264 N.C. 674 ( 1965 )

142 S.E.2d 616 (1965) 264 N.C. 674

Mrs. Burley Woodie CAUDILL, Administratrix of the Estate of Donnie Caudill,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY OF COLUMBUS, OHIO.

No. 457.

Supreme Court of North Carolina.

June 18, 1965.

McElwee & Hall and Moore & Rousseau, North Wilkesboro, for plaintiff, appellee.

Hayes & Hayes, North Wilkesboro, for defendant, appellant.

SHARP, Justice.

Defendant's one assignment of error made in compliance with the rules of this Court, Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829, raises the question of the sufficiency of the evidence to withstand the motion for nonsuit. To recover under the contract of insurance upon which she sues, plaintiff must offer evidence from which the jury could find: (1) that the operator of a hit-and-run automobile, as defined by paragraph II(d) of Endorsement #644, caused bodily injury which resulted in her intestate's death; (2) that plaintiff, as intestate's personal representative, is legally entitled to recover damages as for his wrongful death from that operator (this requirement necessitates proof that the operator had breached a duty to intestate, which breach proximately caused his death); and (3) that plaintiff had duly filed with defendant, as required by Endorsement #644 or as permitted by law, a report of the accident and plaintiff's claim arising out of it. The failure to establish any one of these requirements would preclude recovery.

Apparently the theory of plaintiff's case is that the car which Faw met just before he reached intestate's wrecked Ford was operated by a hit-and-run motorist who had negligently passed intestate on his right, had run him off the road, and had caused him to turn over. Faw's testimony indicates that the automobile did pass intestate's Ford on the north side (intestate's right side) of the road. The inference from that testimony, however, is that the Caudill car had already been wrecked when the other car passed it. At any rate, Faw gave no testimony suggesting that he saw anything to indicate that it had forced the Caudill car off the road or had caused it to upset, or that it had come in contact with the Ford. Just how an overtaking motor vehicle, in passing the Caudill Ford, could have left a tire mark on the right side of the Ford between the door handle and the back fender without itself turning over is not apparent to us, and plaintiff makes no effort to explain such a phenomenon. According to the evidence, this tire mark was first observed three days after the accident, after the Ford had been pulled from the scene by a wrecker and after it had been stored in a wrecked-car lot. Under these circumstances the presence of such tire mark is no evidence that a hit-and-run motorist caused intestate to upset.

The car which met and passed Faw was operating normally at a speed of 30 MPH. The record does not suggest that the automobile of defendant's witness Miller showed any sign of contact with the Ford, much less that it, too, had been upset. From all the evidence, it is a fair inference that the car which Faw met was Miller's. In considering a motion for nonsuit, defendant's evidence which is not in conflict with plaintiff's "may be used to explain, or make clear the evidence of the plaintiff." Hopkins v. Comer, 240 N.C. 143, 149, 81 S.E.2d 368, 373; accord: Jenkins v. Leftwich Electrical Co., 254 N.C. 553, 119 S.E.2d 767; 4 Strong, N.C.Index, Trial § 21, n. 220 (1961 Ed.).

Plaintiff has offered the testimony of no witness and no physical evidence which tends to show that a hit-and-run automobile caused intestate's accident. Indeed, the testimony of Faw, the witness upon whom plaintiff relies to make out her case, is that intestate himself, when he made the statement that his own vehicle "got away from him," denied that any other vehicle was involved. Notwithstanding this, plaintiff contends that she was entitled to go to the jury on the basis of her affidavit filed with defendant some 80 days after the accident because—astonishing as it may seem—it was admitted into evidence without any objection from defendant's counsel.

The rule is, as plaintiff stressfully contends, that upon a motion for compulsory nonsuit the court must consider incompetent evidence which has been admitted without objection. Bishop v. DuBose, 252 N.C. 158, 113 S.E.2d 309; Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Holder v. Cannon Mfg. Co., 135 N.C. 392, 47 S.E. 481. Although such an item of evidence must be accorded its full probative force, Ballard v. Ballard, supra, 230 N.C. at 635, 55 S.E.2d at 321, yet it is entitled to no more probative value than it would have had if it had been admissible under established rules of practice. 4 Jones, Evidence, § 984 (5th Ed. 1958). "The admission of such evidence, without objection, does not add any weight to it, if intrinsically it had none, and should have been excluded upon objection. Evidence does not have weight, because it is admitted; but it is admitted, because it deserves to have weight." Sharp v. Baker, 22 Tex. 306, 315. Whether, as a matter of law, incompetent evidence admitted without objection is entitled to be considered upon a motion for nonsuit is one question; whether, in fact, it has any probative value is another. The conclusion of a witness who has no personal knowledge of the facts is of no probative value. Banty v. City of Sedalia, Mo.App., 120 S.W.2d 59; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Smith v. Lynn, Tex.Civ.App., 152 S.W.2d 838; Sharp v. Baker, supra; 32A C.J.S. Evidence § 1034 (1964).

The affidavit in question was made by one (plaintiff) who was not a witness to the accident nor was anywhere near the scene when it occurred. Obviously, without first-hand observation, she could not know whereof she speaks. In the affidavit she does not purport to reiterate an account of the accident made to her by one claiming to have been an eyewitness. Attempting to state ultimate facts which would bring her case within the coverage of Endorsement #644, she deposes as if she herself had seen the accident. The record discloses, however, that her affidavit was based upon information given by her witness Faw to defendant's adjuster when he investigated plaintiff's claim for medical payments due under the policy. Defendant's cross-examination of Faw disclosed no material difference between that information and his testimony at the trial, which latter testimony is totally insufficient to support plaintiff's conclusions that the negligence of an unidentified driver forced intestate off the road and caused his death. It would indeed be an anomaly if, the testimony of a witness himself being insufficient to take a case to the jury, another's affidavit which was merely interpretative of that testimony could constitute evidence sufficient to overcome the motion for nonsuit. Plaintiff's own evidence discloses that the affidavit is without probative value on the first issue. Although admitted generally, at the close of plaintiff's evidence, without any request being made to restrict it, it is obvious that the affidavit was offered and admitted for the only purpose for which it was prepared, i. e., to meet the requirements of paragraph II(d) with reference to notice of plaintiff's claim against defendant. Clinard v. Security Life & Trust Co., 264 N.C. 247, 141 S.E.2d 271.

Since defendant's motion for nonsuit should have been allowed because of plaintiff's failure to offer any evidence tending to show that negligence on the part of a hit-and-run motorist caused intestate's death (first issue), the question whether the affidavit met the requirements of the policy does not arise (third issue).

The judgment of the court below is

Reversed.