# Ponder v. Cobb

> Supreme Court of North Carolina · June 15, 1962 · 257 N.C. 281

URL: https://www.frixlaw.com/law-library/cases/9856157

## Case

- **Full name:** Zeno H. Ponder v. William E. Cobb; And Frank E. Runnion v. William E. Cobb; And Oren Rice v. William E. Cobb
- **Court:** Supreme Court of North Carolina
- **Decided:** June 15, 1962
- **Citations:** 257 N.C. 281; 126 S.E.2d 67; 1962 N.C. LEXIS 364
- **Precedential status:** Published
- **Opinion:** Concurrence by Higgins
- **Judges:** DeNNY, Higgins
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9856157

## How later opinions describe it (automated extraction)

- applying privilege to a party chairman's criticism of county election officials because the party chairman had a "right to comment" and addressed his letters only to "proper parties"

## Opinion text

Higgins, J.,
concurring in result. I am in agreement with the excellent opinion of the Chief Justice except in one particular. The Court holds the plaintiffs were incompetent to testify the original return which they filed and certified to the County Board of Elections was true and correct. When first offered, the defendant objected to the *302 testimony and stated as the ground of the objection, “It is absolutely leading, for one thing, on his own witness.” The Court now says the question and answer invaded the province of the jury.
This is the setting: The witnesses (plaintiffs) were the election officials. They were under oath. They held the election, counted the ballots, recorded, and certified the results. The original return was introduced in evidence and was before the witnesses.
The defendant charged the election was fraudulent and the return .false. When the plaintiffs were called as witnesses each testified the return from Marshall Precinct 1-1 on all the propositions submitted was true and correct. Each knew — not by deduction, not by what someone else said or did — but by first-hand knowledge whether the record spoke the truth. Their evidence no more invaded the province of the jury than the testimony of a plaintiff that the defendant borrowed $500 from him and had never paid it back.
The cases cited in the opinion do not support the exclusion of the testimony. In Jones v. Bailey, 246 N.C. 599 , 99 S.E. 2d 768 , the witness attempted to testify as to which driver had the right of way — a mixed question of law and fact. In Cheek v. Brokerage Co., 209 N.C. 569 , 183 S.E. 729 , the investigating officer tried to tell the jury that the two vehicles ran together 18 inches across the center line. Of course, he could properly testify as to what he found by way of debris, skid marks, etc. He could not testify by process of deduction as to the point of a collision which he did not see. In Trust Co. v. Store Co., 193 N.C. 122 , 136 S.E. 289 , a witness attempted to testify there was no fraud in a stock sale. The witnesses attempted to draw deductions which invaded the province of the jury.
Ponder, Rice, and Runnion made the records. They counted the ballots, recorded the totals, and certified the return — not by deduction, not by inference, not by reliance upon what some other person did or said — but from their own first-hand knowledge. They, so far as the record shows, were the only ones with first-hand knowledge. I think their testimony was properly admitted in reply to the charge their return was crooked.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9856157. Public record. Not legal advice.