#### CITIZENS BANK & TRUST COMPANY, as Guardian of JANE ANNE LENTZ, a Minor, ARBIE JESSIE EARNHARDT, as the Mother of JANE ANNE LENTZ, and JANE ANNE LENTZ, a Minor, v. REID MOTOR COMPANY, Employer, and TRAVELERS INSURANCE COMPANY, Carrier.

(Filed 8 November, 1939.)

1. Evidence § 22—

Tbe right to cross-examine a witness with respect to the subject matter of bis examination-in-cbief is absolute and not a mere privilege, and when a witness refuses to answer questions on cross-examination the adverse ■ party is entitled to have his entire examination-in-chief stricken from the record.

2. Evidence § 29—

The record of a witness’ testimony in a criminal prosecution is incompetent in a subsequent civil action, since it is required not only that the question being investigated be the same, but also that the party against whom the evidence is admitted should have had an opportunity to cross-examine the witness.

3. Master and Servant § 52b—

It is error for the Industrial Commission to consider testimony of a witness given upon his examination-in-chief when the adverse party moves to strike out such testimony for the refusal of the witness to answer questions on cross-examination.

4. Same—

The record testimony of a witness given in a criminal prosecution is incompetent in a hearing before the Industrial Commission, even though the same question is involved, defendants having had no opportunity to cross-examine the witness in the criminal prosecution.

5. Master and Servant § 55d—

Where it appears that the finding of fact of the Industrial Commission is based exclusively on incompetent evidence, such finding is not conclusive and must be set aside and the cause remanded.

Appeal by defendants from *Bobbitt, J.,*at February Term, 1939, of Cabarrus.

Proceeding for award of compensation under tbe North Carolina Workmen’s Compensation Act on account of tbe death of Roy H. Lentz.

Tbe claim was first heard before Commissioner Dorsett of tbe North Carolina Industrial Commission, who awarded compensation, which was. affirmed on appeal to the Full Commission.

On 24 May, 1938, Roy H. Lentz, an employee of the Reid Motor Company, was shot and killed by one Jack Freeze, a commission salesman of the same company. Defendants deny liability for that they contend that the injury and death of Roy H. Lentz was not caused by *433accident arising out of and in tbe course of bis employment witbin tbe meaning of tbe North Carolina Workmen’s Compensation Act.

On tbe bearing before Commissioner Dorsett, tbe claimant called Jack Freeze as a witness. After testifying for a short time and upon examination by counsel for claimant and by tbe court, tbe witness refused to answer questions. Thereupon, be was tendered to defendants for cross-examination. After answering a few immaterial questions by counsel for defendants, “the witness then refused to answer any further questions, and at this point tbe court found as a fact that tbe witness,. Jack Freeze, refused to answer any further questions to be propounded to him. Commissioner Dorsett of bis own motion ordered that tbe transcript of tbe record testimony of Jack Freeze in tbe criminal proceeding in tbe case of 'State of North Carolina *v.*Jack Freeze,’ tried in tbe Superior Court of Cabarrus County, North Carolina, be made an official part of tbe record.” Defendants objected, and then and there-moved tbe Commissioner to strike from tbe record all of tbe testimony of Jack Freeze for that:

“1. After Jack Freeze, a witness introduced by tbe claimants, bad been sworn and testified at tbe bearing before Commissioner Dorsett,. this day held in Concord, North Carolina, and after tbe said witness-bad been offered to tbe defendants and their attorney for cross-examination, and before tbe defendants could complete their cross-examination of tbe said witness, tbe said witness, Jack Freeze, refused to answer the-questions to be propounded for and in behalf of tbe defendants.

“2. Commissioner Dorsett announced that be would consider tbe testimony of Jack Freeze given at tbe time of tbe criminal trial in tbe Superior Court of Cabarrus County, entitled, 'State of North Carolina *v.*Jack Freeze,’ wherein tbe said Jack Freeze was convicted of second degree murder in connection with tbe death of Eoy H. Lentz; that tbe Eeid Motor Company and tbe Travelers Insurance Company were not parties to tbe aforesaid criminal case of 'State of North Carolina *v**Jack Freeze,’ bad no opportunity to cross-examine tbe said Jack Freeze; and that all of bis testimony, that is, tbe testimony given at tbe original trial and tbe testimony given before Commissioner Dorsett, should be stricken from tbe record and not considered by tbe Industrial Commission.”

Tbe motion was not allowed.

From tbe evidence in tbe case, tbe Commissioner finds as a fact that-tbe deceased, Eoy H. Lentz, “suffered an injury and accident which arose out of and in tbe course of bis employment, which resulted in bis death when be was fatally wounded by a fellow employee,” and concluded as a matter of law, in part, as follows: “There is in tbe record some testimony from this killer. After testifying for a short while, be *434refused to answer any further questions, saying be was being retried again for bis life. There was no way to force this witness to testify. There is enough evidence, however, from him in the record to justify the finding that the accident suffered by the injured employee causing his death arose out of and in the course of said employee’s employment by the Reid Motor Company.” The Superior Court affirmed the award of the Commission.

Thereupon, defendant appeals to the Supreme Court, and assigns error.

*E. Johnston Irvin, Robert H. Irvin, and Hartsell & Hartsell for plaintiffs, appellees.*

*Guthrie, Pierce & Blakeney for defendants, appellants.*

Winborne, J.

Appellants appropriately assign as error: (1) The refusal of the court to strike from the record all of the testimony of the witness Jack Freeze, given on the hearing below, when he declined to submit to further cross-examination; and (2) the admission in evidence of the transcript of testimony of Jack Freeze given in a criminal action against him, to which the defendants were not parties. Decisions of the courts generally support the basic principle upon which these assignments rest.

1. A party has the right to an opportunity to fairly and fully cross-examine a witness who has testified for the adverse party. This right, with respect to the subject of his examination-in-chief, is absolute and not merely a privilege. A denial of it is “prejudicial and fatal error.” *Mining Co. v. Mining Co.,*129 Fed., 668, 70 C. S., 611; *S. v. Hightower,*187 N. C., 300, 121 S. E., 616; *Milling Co. v. Highway Com.,*190 N. C., 692, 130 S. E., 724; *S. v. Beal,*199 N. C., 278, 154 S. E., 604; *S. v. Nelson,*200 N. C., 69, 156 S. E., 154.

Where the opposing party, without fault on his part, is deprived of the opportunity of a cross-examination, it is generally held that he is entitled to have the direct testimony stricken from the record. “This doctrine rests on the common law rule that no evidence should be admitted but what was or might be under the examination of both parties and that *ex parte*statements are too uncertain and unreliable to be considered in the investigation of controverted facts.” 28 R. C. L., 600. Witnesses, sec. 189.

While the question has not been the subject of decision in this State, courts of other states uniformly hold that where a witness refuses to answer pertinent questions on cross-examination, his testimony on direct examination should be stricken out. 70 C. J., 618. *Thomas v. Dower, 162*Wash., 54, 297 P., 1094; *Millikan v. Booth*(Okla., 1896), 46 P., 489; *Cumberland R. Co. v. Girdner,*174 Ky., 761, 192 S. W., 873; *435*McElhanon v. State*(Ga.), 26 S. E., 501; *Martin v. Elden,*32 Ohio St. Rep., 282; *Lowery v. Ry. Co.,*248 Ill. App., 306; *Gallagher v. Gallagher,*87 N. Y. S., 343, 92 App. Div., 138, 15 N. Y. Ann. Cas., 35; *Beardsworth v. Whitehead,*122 N. Y. S., 31, 137 App. Div., 306.

Where cross-examination is prevented by illness or death of witness, after direct examination, the same rule applies. *Wray v. State*(Ga.), 45 So., 697; *Sperry v. Moore*(Mich.), 4 N. W., 13.

2. The admissibility in evidence of testimony taken in another action depends not only upon the identity of the question being investigated, but upon the opportunity of the party against whom the evidence is offered, to cross-examine. *Hartis v. R. R.,*162 N. C., 236, 78 S. E., 164; *McLean v. Scheiber,*212 N. C., 544, 193 S. E., 708; *Milne*v. *Sanders*(Tenn.), 228 S. W., 702.

In the *Milne case, supra,*a proceeding under Workmen’s Compensation Act, the Supreme Court of Tennessee, through *McKinney, J.,*speaking to the question, said: “We are of opinion that the court properly excluded the transcript of the record in the criminal action. The plaintiffs in the present case were not parties to the criminal case, had no opportunity to cross-examine witnesses in the latter case, nor to introduce evidence to rebut that offered by the State.”

Applying these principles to the case in hand, when the witness Jack Freeze refused to submit to further cross-examination after a few immaterial questions were asked, the failure of the court to strike out the testimony given by him on examination-in-chief is error. Likewise, the transcript of testimony of Freeze in criminal action is incompetent and inadmissible, and should have been excluded.

It appears on the face of the record that the findings of the Industrial Commission are based upon the testimony of Jack Freeze. The hearing Commissioner says, “There is enough evidence, however, *from him*in the record to justify the finding that the accident suffered by the injured employee causing his death arose out of and in the course of the said employee’s employment by the Reid Motor Company.” Findings of fact of the Industrial Commission, when supported by competent evidence, are binding on Superior and Supreme Courts. Decisions of this Court, in so holding, are uniform. But when it appears specifically that findings of fact are founded upon incompetent evidence, such findings are not conclusive, and must be set aside. The proceeding will be remanded to the Industrial Commission for further consideration in accordance with usual course and practice.

Reversed and remanded.