{ "id": 8548014, "name": "JOYCE N. GAY, WIDOW AND JOYCE N. GAY, NEXT FRIEND OF SANDRA GAY, THE MINOR CHILD OF JOSEPH H. GAY, DECEASED (EMPLOYEE) v. GUARANTEED SUPPLY COMPANY, INC., (EMPLOYER) and AETNA CASUALTY & SURETY COMPANY, INSURER", "name_abbreviation": "Gay v. Guaranteed Supply Co.", "decision_date": "1971-08-04", "docket_number": "No. 7118IC472", "first_page": "149", "last_page": "153", "citations": [ { "type": "official", "cite": "12 N.C. App. 149" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "121 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570181 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0451-01" ] }, { "cite": "139 S.E. 232", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "opinion_index": 0 }, { "cite": "193 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217725 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/193/0670-01" ] } ], "analysis": { "cardinality": 511, "char_count": 10231, "ocr_confidence": 0.583, "pagerank": { "raw": 2.1471670164081693e-07, "percentile": 0.7680492183135001 }, "sha256": "1c8a228c7bbd9c38c127682cd115fe0363d9b9eaa3454f27286066929580cbdf", "simhash": "1:973de0a7f77a8257", "word_count": 1669 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Parker concur." ], "parties": [ "JOYCE N. GAY, WIDOW AND JOYCE N. GAY, NEXT FRIEND OF SANDRA GAY, THE MINOR CHILD OF JOSEPH H. GAY, DECEASED (EMPLOYEE) v. GUARANTEED SUPPLY COMPANY, INC., (EMPLOYER) and AETNA CASUALTY & SURETY COMPANY, INSURER" ], "opinions": [ { "text": "BRITT, Judge.\nPlaintiffs first assign as error the hearing commissioner\u2019s refusal to admit portions of an adverse examination of E. J. Sachs, employer\u2019s president and general manager. The record indicates that the hearing commissioner regarded the adverse examination as a deposition and refused to admit portions offered by plaintiffs for that Mr. Sachs had testified in one of the hearings and resided within 75 miles of the place of the hearing. Plaintiffs contend that while the adverse examination (or deposition as claimed by defendants) was taken on 2 January 1968 that it was offered into evidence at a hearing on 28 May 1970, therefore, the admissibility was governed by Rule 26(d) (1) of the Rules of Civil Procedure, G.S. 1A-1.\nThe assignment of error is sustained. We think Rule 26(d) (1) applies and that the portions of the Sachs\u2019 examination offered by plaintiffs should have been received in evidence. G.S. 1A-1. Ch. 954, Sec. 10, 1967 Session Laws as amended by Ch. 803, Sec. 1, 1969 Session Laws.\nPlaintiffs assign as error the exclusion of certain testimony of the widow. Plaintiffs offered testimony of Mrs. Gay to the effect that on Thursday night prior to the fatal accident on Friday night, Joseph called her over the telephone from Kentucky; that he called to let her know that he would be home that weekend; that there had been a change in plans; \u201cthat Mr. Sachs had asked him to come in.\u201d The obvious purpose of the testimony was to show that Joseph was coming to Greensboro not only to see his family but at the request of his employer. The hearing commissioner sustained defendants\u2019 objection to the testimony but permitted it entered into the record. Thereafter defendants\u2019 counsel cross-examined Mrs. Gay about the telephone conversation; defense counsel asked her if her husband did not state that he was coming home for purpose of bringing Mrs. Gay a new car. Following the cross-examination, plaintiffs reoffered Mrs. Gay\u2019s direct testimony, contending that the cross-examination regarding the telephone conversation made the portion offered by plaintiffs admissible.\nThe assignment of error is sustained. When defendants\u2019 counsel attempted by cross-examination of Mrs. Gay to establish defendants\u2019 contention as to why Joseph was coming home on the night of his death, counsel \u201copened the door\u201d as to the portion plaintiffs sought to introduce. Stansbury N. C. Evidence, Second Edition, Sec. 75 and cases therein cited. The instant case is clearly distinguishable from Shelton v. Railroad, 193 N.C. 670, 139 S.E. 232 (1937) because here defendant\u2019s objection to the testimony had been sustained and there was no reason for cross-examination regarding it.\nPlaintiffs assign as error the refusal of the hearing commissioner to admit into evidence testimony of Marvin Farmer relating to a telephone call allegedly received by Joseph on Wednesday evening from Mr. Sachs. Over defendants\u2019 sustained objection, Farmer testified for the record that he and Joseph were eating supper, that the manager of the motel came over and told Joseph that he had a long distance phone call; that in a few minutes Joseph returned and stated that Sachs had called and \u201che guessed he would go home; he (Sachs) wanted him to come in something about the job.\u201d This evidence was clearly inadmissible and the assignment of error is overruled.\nPlaintiffs assign as error the exclusion of testimony by Connie Baines to the effect that on Friday afternoon before the fatal accident that night, he was with Joseph at a motel in Kentucky; that he (Baines) left in another automobile a few minutes before Joseph left; that Joseph said that he had to \u201cgo in because Mr. Sachs wanted him to bring some papers.\u201d Plaintiff contends that this evidence was admissible as part of the res gestae.\nThe assignment of error is sustained. We hold that the evidence was admissible but not necessarily as a part of the res gestae. The evidence appears to meet the requirements set forth in Little v. Brake Company, 255 N.C. 451, 121 S.E. 2d 889 (1961) ; moreover, it is strikingly similar to the evidence which the Supreme Court declared admissible in the very recent case of State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). In State v. Vestal, supra, in the opinion written by Lake, Justice, we find the following: \u201cThe sound basis for its admission is not the res gestae doctrine, but the exception to the hearsay rule permitting the admission of declarations of a decedent to show his intention, when the intention is relevant per se and the declaration is not so unreasonably remote in time as to suggest the possibility of a change of mind.\u201d\n\u2022 In their remaining assignments of error, plaintiffs contend that the hearing commissioner erred (1) in failing to make certain findings of fact, and (2) in making erroneous findings. In view of our disposition of this appeal, we find it unnecessary to pass upon these assignments.\nTaking into consideration the aggregate of the evidence we think was erroneously excluded, we cannot say that plaintiffs were not prejudiced thereby; therefore, we vacate the order appealed from and remand the proceeding to the Industrial Commission. In its further deliberations the commission will consider the evidence offered by plaintiffs and declared by us to have been erroneously excluded.\nError and remanded.\nJudges Morris and Parker concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Narron, Holdford & Babb by Tahnadge L. Narron for plaintiff appellants.", "Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., for defendant appellees." ], "corrections": "", "head_matter": "JOYCE N. GAY, WIDOW AND JOYCE N. GAY, NEXT FRIEND OF SANDRA GAY, THE MINOR CHILD OF JOSEPH H. GAY, DECEASED (EMPLOYEE) v. GUARANTEED SUPPLY COMPANY, INC., (EMPLOYER) and AETNA CASUALTY & SURETY COMPANY, INSURER\nNo. 7118IC472\n(Filed 4 August 1971)\n1. Master and Servant \u00a7 93; Rules of Civil Procedure \u00a7 26\u2014 adverse examination of defendant\u2019s president \u2014 admissibility\nIn a workmen\u2019s compensation hearing held on 28 May 1970, the admissibility of an adverse examination of defendant\u2019s president taken on 2 January 1968 was governed by G.S. 1A-1, Rule 26(d)(1), and portions of the adverse examination offered by plaintiffs should have been received in evidence, notwithstanding defendant\u2019s president had testified in one of the hearings and resided within 75 miles of the hearing site.\n2. Evidence \u00a7 11\u2014 opening the door to testimony of telephone conversation with decedent\nIn a workmen\u2019s compensation proceeding in which plaintiff contended that the employee\u2019s death in an automobile accident occurred while he was returning home on a weekend from his job site in Kentucky not only to see his family but also in connection with his employer\u2019s business, defendant\u2019s cross-examination of the deceased employee\u2019s widow as to whether the employee had told her in a telephone conversation that he was coming home to bring her a new car \u201copened the door\u201d for the admission of the widow\u2019s previously excluded testimony that the employee had told her by telephone that his employer\u2019s president \u201chad asked him to come in,\u201d and plaintiff\u2019s reoffer of the excluded testimony was improperly refused.\n3. Evidence \u00a7 33; Master and Servant \u00a7 93\u2014 workmen\u2019s compensation \u2014 exclusion of hearsay testimony\nIn this workmen\u2019s compensation proceeding, the hearing commissioner did not err in the exclusion of testimony that two days before the accident the employee had received a telephone call and had told the witness that his employer\u2019s president had called and \u201che guessed he would go home; he wanted him to come in something about the job.\u201d\n4. Evidence \u00a7\u00a7 11, 33; Master and Servant \u00a7 93\u2014 workmen\u2019s compensation \u2014 declaration of decedent showing intention \u2014 exception to hearsay rule\nIn this workmen\u2019s compensation proceeding in which plaintiff contended that the employee\u2019s death in an automobile accident occurred while he was returning home on a weekend from his job site in Kentucky not only to see his family but also in connection with his employer\u2019s business, testimony that on the afternoon before the fatal accident that night the witness was with the employee in a motel and that the employee said he had to \u201cgo in\u201d because his employer\u2019s president \u201cwanted him to bring some papers,\u201d held admissible as an exception to the hearsay rule permitting the admission of declarations of a decedent to show his intention.\nAppeal by plaintiffs from award of the North Carolina Industrial Commission filed 23 November 1970.\nPlaintiffs attempt to recover benefits under the Workmen\u2019s Compensation Act which they contend are due them because of the death of Joseph H. Gay (Joseph). They contend that Joseph\u2019s death was caused by accident arising out of and in the course of his employment with defendant employer.\nThe stipulations and evidence tended to show: Joseph was employed by defendant employer, a Greensboro contractor, as a job foreman. He made his home with his family in Greensboro. In September 1967, defendant employer sent Joseph to Richmond, Kentucky, to recruit labor and supervise the repair of certain Army facilities near Lexington, Kentucky. Joseph furnished his own transportation from Greensboro to Kentucky. He was employed at a weekly salary of $175.00 and, in addition, defendant employer paid all his living expenses while in Kentucky, all gas, oil and maintenance expenses on his pickup truck which was used in connection with the Kentucky project; Joseph was also paid ten cents per mile for driving his vehicle to Kentucky and was promised a minimum of one round trip plane ticket monthly from Kentucky to Greensboro.\nJoseph returned to Greensboro on alternate weekends. Plaintiffs contend these trips were not only for Joseph to see his family but in connection with employer\u2019s business. On the weekend of 18 November 1967 while returning to Greensboro in his own automobile, at around 12:10 a.m., his car went over the side of a mountain on a curve near Boone, N. C., and he was fatally injured.\nAfter several hearings, the hearing commissioner entered an order in which he found and concluded that Joseph\u2019s accidental death did not arise out of and during the course of his employment. The full commission approved the order of the hearing commissioner and plaintiffs appealed.\nNarron, Holdford & Babb by Tahnadge L. Narron for plaintiff appellants.\nSmith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., for defendant appellees." }, "file_name": "0149-01", "first_page_order": 175, "last_page_order": 179 }