Ann A. BURNS
v.
Pender R. McELROY, Administrator C. T. A. Under the Will and For the Estate of Maude H. Barnett, Deceased.
No. 8126SC968.
Court of Appeals of North Carolina.
May 18, 1982.*280 Lane & Helms by Thomas G. Lane, Jr., Charlotte, for plaintiff-appellant.
James, McElroy & Diehl by Allen J. Peterson and David M. Kern, Charlotte, for defendant-appellee.
HEDRICK, Judge.
Based on Assignments of Error numbered 3, 4, and 5, plaintiff contends that the trial court erred in "not submitting certain issues" to the jury and in its instructions to the jury with respect to plaintiff's claim for services.
"The issues to be submitted to the jury are those raised by the pleadings and supported by the evidence." Johnson v. Massengill, 280 N.C. 376, 384, 186 S.E.2d 168, 174 (1972). "The duty of the judge is to declare the law arising on the evidence and to explain the application of the law thereto. Rule 51(a) of the Rules of Civil Procedure." Link v. Link, 278 N.C. 181, 198, 179 S.E.2d 697, 707 (1971). "The chief purpose of a charge is to aid the jury in clearly understanding the case and in arriving at a correct verdict ... [and to ensure] that the verdict represents a finding by the jury under the law and upon the evidence presented." Warren v. Parks, 31 N.C.App. 609, 612, 230 S.E.2d 684, 687 (1976), disc. rev. denied, 292 N.C. 269, 233 S.E.2d 396 (1977). "The record on appeal in civil actions... shall contain ... so much of the evidence ... as is necessary for understanding of all errors assigned." Rule 9(b)(1), N.C.Rules of Appellate Procedure. In the present case, none of the evidence is reproduced in the record, nor has a transcript of the testimony been provided. We are therefore unable to evaluate the assignments of error relating to the instructions and issues. The appellant has the burden of showing error in the trial court's judgment. Brown v. Boney, 41 N.C.App. 636, 255 S.E.2d 784, disc. rev. denied, 298 N.C. 294, 259 S.E.2d 910 (1979). With respect to these assignments of error, she has failed to do so.
Plaintiff next assigns error to the trial judge's refusal to allow plaintiff to testify with respect to the circumstances surrounding the deceased's delivery to plaintiff of the $4,544.83 check. The testimony of the plaintiff, heard by the judge on voir dire, is reproduced in the record as follows: Barnett first delivered the check to plaintiff on a Friday to keep for her over the weekend; *281 plaintiff returned the check to Barnett on the following Monday; Barnett fractured her hip that Monday and was hospitalized; while at the hospital and after undergoing surgery, Barnett endorsed the check and asked plaintiff to cash it for her and put the proceeds in plaintiff's safety deposit box until she was able to get out of the hospital; Barnett told plaintiff that if anything happened to her, that she wanted plaintiff to have the proceeds of the check. Pursuant to Barnett's instructions, plaintiff cashed the check and put the proceeds in her safety deposit for safekeeping. Barnett died two days later.
It seems clear that the trial judge excluded this testimony about communications and transactions between plaintiff and the now-deceased Barnett on the grounds that it violated the "Dead Man's Statute," G.S. § 8-51. The plaintiff argues that the court erred in excluding such testimony in that the defendant "opened the door" for plaintiff's proffered testimony when defendant himself, in response to the allegation in plaintiff's complaint that Barnett "gave to the plaintiff the sum of $4,544.83 with the request that she hold his [sic] money for her in safekeeping," admitted in an allegation in his answer that "Barnett delivered to Plaintiff the sum of" $4,544.83.
"The law that an interested survivor to a personal transaction or communication cannot testify with respect thereto against the dead man's estate is intended as a shield to protect against fraudulent and unfounded claims. It is not intended as a sword with which the estate may attack the survivor," Carswell v. Greene, 253 N.C. 266, 270, 116 S.E.2d 801, 804 (1960); hence, G.S. § 8-51 contains an exception to the prohibition of the survivor's testimony when "the executor... is examined in his own behalf." This exception is designed to prevent the estate from using G.S. § 8-51 as both a shield and a sword.
In the present case, it is not at all clear that the allegation in defendant's answer, being merely part of the pleadings in the case, constitutes his being "examined in his own behalf." First, the allegation did not amount to testimony by the defendant and, hence, did not amount to his being "examined" at trial. Second, the answer's allegation of delivery by Barnett to the plaintiff is not necessarily an allegation favorable to the defendant executor, insofar as it does imply that plaintiff's possession of the check was at least initially authorized by Barnett; hence, the allegation was not really on the executor's "own behalf." Furthermore, even if this allegation did constitute a binding admission of delivery, such an admission by defendant of a fact initially broached by plaintiff can hardly amount to defendant's use of the "Dead Man's Statute" as a sword against plaintiff. Finally, the door is opened to the survivor's testimony only when the executor "is a voluntary witness testifying in his own behalf, and not when he is forced upon the witness stand to testify against his interest." Sorrell v. McGhee, 178 N.C. 279, 281, 100 S.E. 434, 435 (1919). "A party does not have it in his power to remove his own incompetency by calling the administrator as a witness and examining him concerning the transaction in controversy." 1 Stansbury's N.C. Evidence, § 75, 229 (Brandis rev. 1973). Under G.S. § 1A-1, Rule 8(b), a defendant, in his answer, "shall admit or deny the averments upon which the adverse party relies;" hence, plaintiff's allegations put defendant in a situation in which he had to aver something with respect to plaintiff's receiving the check, and such a responsive averment should not suffice to "open the door" for plaintiff. Thus the trial court did not err in excluding the testimony of plaintiff with respect to the personal transaction between the plaintiff and deceased as regards the delivery of the check for $4,544.83. The evidence, in our opinion, was clearly not admissible in plaintiff's claim against the estate for services rendered. This assignment of error is overruled.
We note that in allowing defendant's motion for a directed verdict with respect to plaintiff's claim to have the proceeds of the check declared to be a "gift causa mortis," the trial judge apparently also relied on G.S. § 8-51 in excluding evidence *282 with respect thereto. The trial court, relying on the jury's verdict against plaintiff's claim for services and apparently relying on his ruling directing a verdict for the defendant with respect to plaintiff's claim of "gift causa mortis," entered what amounts to a summary judgment for defendant on his counterclaim against plaintiff for conversion. The trial court simply declared that there were no genuine issues of material fact with respect to defendant's counterclaim. We find the trial court to be in error in this regard. Plaintiff, in her reply, specifically denied any wrongful possession or conversion of the funds. The record further discloses that plaintiff's possession of the check made payable to Barnett and endorsed by her was at least initially authorized by Barnett. Although plaintiff has failed to show that the delivery was a gift causa mortis or a part payment for services, the record discloses no more than that plaintiff does have possession of the funds; whether such possession is wrongful is a genuine issue of fact material to defendant's counterclaim for conversion. The burden of proving that plaintiff wrongfully converted these funds is on the counterclaiming defendant. Whether defendant can prove his claim of conversion against plaintiff without "opening the door" remains to be determined when the cause is heard upon remand for trial on defendant's counterclaim.
The result is: with respect to plaintiff's claim for services, we find no error; with respect to defendant's counterclaim, the summary judgment for defendant is reversed and remanded.
No error as to plaintiff's claim for services.
Reversed and remanded as to defendant's counterclaim.
HILL and BECTON, JJ., concur.