Piper v. Ashburn

89 S.E.2d 762 (1955)

243 N.C. 51

Caesar Bacchus PIPER, Jr. v. H. F. ASHBURN and John Wesley Ashburn, and H. F. Ashburn, Guardian ad Litem for John Wesley Ashburn.

No. 388.

Supreme Court of North Carolina.

November 2, 1955.

*763 Deal, Hutchins & Minor, Winston-Salem, for defendants appellants.

Weston P. Hatfield, Winston-Salem, Smith, Moore, Smith & Pope, Greensboro, for plaintiff appellee.

WINBORNE, Justice.

Assignment of error No. 1 based upon exception to the ruling of the trial court in excluding the affirmative answer given by Dr. Kelly to the question asked her about statement she made in her complaint that Dr. Piper entered the intersection when the light was red against him is well taken. This answer by her was competent for impeachment. Speaking of the rule as to prior inconsistent statements for impeachment purposes, Stansbury in his treatise on North Carolina Evidence, Section 46, p. 67, has this to say: "A witness may be impeached by proof that on other occasions he has made statements inconsistent with his testimony on the present trial. Such statements may have been made orally, either informally or in the course of the witness' testimony at a former trial or hearing, or they may have been in writing * * *," citing among other cases Floyd v. Thomas, 108 N.C. 93, 12 S.E. 740. See also recent case of State v. Hart, 239 N.C. 709, 80 S.E.2d 901, 41 A.L.R.2d 1199.

It is noted that the record of case on appeal shows that Dr. Kelly, though suing Dr. Piper in another action, is here testifying for him as to statement made by him to her, corroborative of his testimony given in this case; and also saying she is assuming he was driving safely.

We, therefore, hold that there is prejudicial error in excluding her answer to the question asked, for which there must be a *764 new trial. State v. Hart, supra. Other assignments of error need not be expressly considered, since the matters to which they relate may not recur at next trial.

New trial.