Vaughn v. Tyson

188 S.E.2d 614 (1972) 14 N.C. App. 548

Herman VAUGHN
v.
Tommy TYSON et al.

No. 721DC376.

Court of Appeals of North Carolina.

May 24, 1972.

Wiley J. P. Earnhardt, Jr., Edenton, for plaintiff appellee.

John F. White, Merrill Evans, Jr., Edenton and White, Hall & Mullen by Gerald F. White, Elizabeth City, for defendants appellants.

BRITT, Judge.

Defendants contend the trial court erred in excluding from consideration as corroborative evidence a letter from the Department of Social Services of Westchester County, New York, to the Department of Social Services of Chowan County. The letter in question was offered when Mr. Hendricks, Director of the Chowan County Department of Social Services, was on the witness stand. In substance, the letter stated that in March 1970 plaintiff's late wife, eight months pregnant, applied for assistance; that her husband had deserted her and had provided no support; that full assistance was given from March 1, 1970, through June 1970 and the wife's hospital bill and other medical expenses were paid by the (New York) Department of Social Services.

Stansbury, North Carolina Evidence 2d, § 52, p. 105 states: "The liberality of these rules (pertaining to admissibility of corroborating evidence) has sometimes misled counsel into the assumption that almost anything is admissible so long as it can be called corroborative. But important limitations must be observed. Unless the evidence offered is admissible for substantive purposes under independent rules, it must relate to some conduct or some characteristic of the witness himself which tends to establish him as a credible person."

Then on p. 108 Stansbury states: "The grounds upon which the witness's own prior statements are admitted do not justify the reception of another person's extrajudicial statements, and such statements would seem to be inadmissible hearsay unless they fall within some exception to the hearsay rule or are offered to impeach or corroborate the declarant's own testimony in the case." See also: Bryant v. Bryant, 178 N.C. 77, 100 S.E. 178 (1919).

We hold that since the letter was the assertion of a person other than the witness, offered to prove the matter asserted and not corroborative of the witness, the letter was properly excluded from the evidence.

Defendant's other assignments of error relate to the finding of facts and conclusions of law by the trial judge. In a nonjury trial the findings by the court have the force and effect of a verdict of a jury and are conclusive on appeal if supported by any competent evidence notwithstanding that there is evidence contra which would sustain findings to the contrary. Huski-Bilt, Inc. v. First-Citizens Bank & Trust Co., 271 N.C. 662, 157 S.E.2d 352 (1967); Young v. State Farm Mutual Automobile Insurance Co., 267 N.C. 339, 148 S.E.2d 226 (1966). The evidence as previously reviewed is plenary to support the findings of fact and conclusions of law based thereon and will not be disturbed on appeal.

It was established that plaintiff is the sole surviving parent of the children. In the case of In Re Woodell, 253 N.C. 420, 117 S.E.2d 4 (1960), the late Chief Justice Parker quoted from James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759, as follows: "Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it." Although the trial judge in his judgment commended defendants, particularly for the love, care and affection they had shown the children, he found that the best interest of the children would be served and promoted by awarding their custody to the plaintiff, their father.

The judgment appealed from is

Affirmed.

PARKER and HEDRICK, JJ., concur.