Cook ex rel. Cook v. Edwards

BeogdeN, J.

Tbe defendant was asked tbe following question on direct examination: (Q.) “What did Mr. Cook say to you with reference to this accident?” (A.) “He expressed regret that it happened, and I told him tbe reason I was in Lilesville, and be asked me not to let tbe accident have any effect on me moving to Lilesville and for me to come right on over; that be realized it was an unavoidable accident.”

*739 The foregoing evidence was admitted over the objection of plaintiff, and the ruling of the court is assigned as error.

W.

C. Cook was the father of plaintiff and afterwards was appointed next friend to prosecute the suit for and in behalf of plaintiff. Therefore, the question of law presented is whether the admission of a parent before he is appointed next friend to prosecute an action for a minor child is admissible in evidence.

The general rule is thus expressed in 22 O. J., 353, section 408: “Admissions of a guardian ad litem or next friend are not competent to affect the interest of the person whom the declarant represents in the action.” Our court has adopted the same view of the law, stated as follows, in Coble v. Coble, 82 N. C., 339 : “The admission therefore of a guardian, or of an executor or administrator made before he was completely clothed with that trust, or of a prochem ami made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself as the representative of the heirs, devisees and creditors in the other.”

Neff v. Cameron, 18 A. L. R. (N. S.), 320;

Strother v. R. R., 123 N. C., 197 , 31 S. E., 386 ;

Daugherty v. Taylor, 140 N. C., 446 , 53 S. E., 296 ;

Shuford v. Cook, 169 N. C., 52 , 85 S. E., 142 , 1 R. C. L., 486, sec. 22.

Applying these established principles to the facts, it is apparent that the admission of the next friend of the infant plaintiff, madé before his appointment, to the effect that the injury was the result of “unavoidable accident” was inadmissible and incompetent, and the objection to such admission is sustained.

New trial.