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220 N.C. 198

16 S.E.2d 829

Howell v. . Harris

Supreme Court of North Carolina

Decided October 15, 1941

Supreme Court of North Carolina · decided 1941-10-15

Key passage — most relied on by later courts

““It is the rule with us that what an agent or employee says relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestos, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says af-terwards, and merely narrative of a past occurrence, though his agency, or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer.””

quoted by 1 later decision, including Branch v. Dempsey

Good law ✅— No negative treatment on recordhow we know

Decided 1941-10-15

How this case has been cited

Cited by 10 later decisions — most recently December 1965

8 state decisions

40194119501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Stacy, C. J.

¶1 The evidence offered by the plaintiff tending to show what the agent of the Bus Company testified in the Mayor’s Court was properly excluded as against the corporate defendant. Hester v. Motor Lines, 219 N. C., 743. What an agent or employee says after an event, merely narrative of the past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as substantive evidence against the principal or em *200 ployer. Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802, and cases there cited. Nor is such evidence competent to prove the fact of agency or the scope of tbe agent’s authority or that the alleged agent was acting for his principal or employer at the time. Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817.

¶2 It appears, however, that when the court came to charge the jury, this evidence was inadvertently recited as tending to show that the agent was then about his master’s business. The evidence had previously been excluded as incompetent for this purpose and it was error thus to recite it in the charge. It has been said in a number of cases that where, by action of the court, evidence material to the issue, which has been excluded, is placed before the jury, without opportunity to answer it or in any way to meet it, necessitates a new trial. S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473; Smith v. Hosiery Mill, 212 N. C., 661, 194 S. E., 83; S. v. Love, 187 N. C., 32, 121 S. E., 20.

¶3 No error has been discovered in the trial so far as the individual defendant is concerned.

¶4 Opposite conclusions, therefore, result in respect of the two appellants:

¶5 On appeal of Lyles Harris,

¶6 No error.

¶7 On appeal of Queen City Coach Company,

¶8 New trial.

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