Stone v. Hunt

• Citation: 21 S.W. 454,114 Mo. 66
• Parties: STONE v. HUNT.
• Decision Date: 06 February 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 454

114 Mo. 66

STONE v. HUNT.

Supreme Court of Missouri, Division No. 1.

February 6, 1893.

WITNESSES — TRANSACTIONS WITH DECEDENTS — TRIAL — CONTRIBUTORY NEGLIGENCE.

1. The statutory provision that where one of the original parties to a cause of action is dead, and his personal representative is a party to the suit, the other party shall not be admitted to testify in his own favor, does not apply where the testimony of the decedent, taken at a former trial, has been preserved by bill of exceptions, even though such testimony is not first introduced by the personal representative.

2. In such case the living witness cannot testify as to matters not covered by the testimony of the decedent, but he may correct any errors in the testimony given by himself upon the former trial.

3. An objection to evidence "as incompetent" is not sufficient to raise the point on appeal that the witness, being a party, could not testify, because the adverse party was dead.

4. In an action to recover damages to personal property by the falling of a wall upon it, the fact that the plaintiff failed to remove his property after being notified that it was unsafe for him to go into the building does not show contributory negligence, especially where it appears that the wall did not fall from inherent weakness, but because of the negligence of the person who was taking it down.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Henry M. Stone against Charles L. Hunt for injuries to personal property. Hunt having died pending suit, his executrix, Mary C. Hunt, was substituted as defendant. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Chas. M. Napton, for appellant. Lee & Ellis, for respondent.

BLACK, C. J.

The evidence shows that Charles L. Hunt was the owner of two buildings in St. Louis, separated by a common wall; the north one being three, and the south one five, stories in height. The plaintiff occupied the upper part of the north building for a museum, and was the tenant of Hunt. Hunt had both buildings leased out to various persons, and he collected and received the rents. The interior portions of the five-story building were destroyed by a fire in November, 1877, which left the walls only standing. These walls were in a dangerous condition, and Hunt was notified to take them down by the proper city authorties. Persons engaged in taking them down caused one to fall over against and upon the house occupied by the plaintiff, knocking the south wall of that building down, and thereby destroying much of the plaintiff's museum property; and this is a suit to recover damages for the injuries done to this property. The case was here before, and is reported in 94 Mo. 475, 7 S. W. Rep. 431.

The principal question now arises out of the action of the trial court in allowing the plaintiff to testify in his own favor. Charles L. Hunt was the original defendant. He and the plaintiff testified on the first trial, and their testimony was preserved by a bill of exceptions. The defendant died, and the cause was revived in the name of his executrix. On the second trial the plaintiff offered himself as a witness in his favor, and the defendant objected. Thereupon the plaintiff offered in evidence the bill of exceptions, not as evidence to go to the jury, but to show to the court what the testimony of the deceased and that of the plaintiff was on the former trial, and as a guide to the proposed examination. The court then overruled the objection, and allowed the plaintiff to testify, to which ruling defendant excepted. At a subsequent stage of the trial the defendant read in evidence the testimony of the deceased as preserved in the bill of exceptions. Under our statute, parties to the suit and parties in interest may testify the same as other persons. It is, however, provided that where one of the original parties to the contract or cause of action in issue and on trial is dead, and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor. As has often been said, this statute excluding one party when the other is dead was designed to place them upon an equality. Accordingly the course of our decisions has been to follow the spirit, rather than the strict letter, of the law. Hence it has been held that the statute was not intended to exclude evidence which was admissible and competent when it was given. Parsons v. Parsons, 45 Mo. 265. That was an action of ejectment. The action was first brought against Isack Parsons, and, pending that suit, the defendant's deposition was taken. He died, and the suit was discontinued, and the plaintiff then brought suit against the widow of the deceased. At the trial of the second suit the court allowed the widow to read in evidence the deposition, and that ruling was approved. So it has been held, when the defendant gave his deposition in his own behalf in one case, that the deposition was competent evidence, after his death, in another suit, brought by his executors against the plaintiff in the former suit concerning the same subject-matter. Allen v. Chouteau, 102 Mo. 310, 14 S. W. Rep. 869. It is elsewhere held, under like statutes, that if a party to a suit give his deposition in his own favor and die, and the cause is revived in the name of his executor or administrator, the latter may read the deposition in evidence. Strickland v. Hudson, 55 Miss. 235; McDonald v. Allen, 8 Baxt. 446. But when the testimony of the deceased party is used in favor of his estate, the living party is a competent witness, certainly as to all matters covered by the deposition of the deceased. Allen v. Chouteau, supra; Strickland v. Hudson, supra; Carithers v. Venable, 52 Ga. 389; Mumm v. Owens, 2 Dill. 476. The same rules must, of course, apply where the testimony of the deceased party has been preserved by a bill of exceptions. Though the cases cited are not in exact point here, still they serve to show to what extent the courts have gone to work out the purpose, object, and spirit of the statute. Here the representative of the deceased party had not read in evidence the testimony of the deceased, as in the cases cited; but the plaintiff disclosed the fact that the testimony of the...