Bogie v. Nolan

• Citation: 9 S.W. 14,96 Mo. 85
• Parties: BOGIE v. NOLAN.
• Decision Date: 18 June 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 14

96 Mo. 85

BOGIE v. NOLAN.

Supreme Court of Missouri.

June 18, 1888.

1. EVIDENCE — ADMISSIONS — DEPOSITION.

The declarations of a party to a suit made in a deposition taken by his adversary may be read in evidence against him on the trial in the same suit in which such deposition was taken, whether he is present or absent. Overruling Priest v. Way, 87 Mo. 16. NORTON, C. J., dissenting.

2. NEGOTIABLE INSTRUMENTS — ACTIONS — EVIDENCE — EXECUTORS AND ADMINISTRATORS.

In an action against an administrator on promissory notes alleged to have been executed by his intestate, where the defense is want of consideration, in order to prove that, after the death of the intestate, no such sum as that alleged to have been given as consideration could be found among the assets of the estate, the administrator may testify as to an inventory made by him of all the personal property belonging to the estate, and the reading of the names and amounts from such paper to the jury as part of his testimony is not reversible error.

3. SAME — CONSIDERATION — BURDEN OF PROOF.

In an action against an administrator on promissory notes alleged to have been executed by his intestate for a valuable consideration, where it appears that plaintiff had for a long time sustained the relation of physician and confidential advisor to the intestate, who was a childless widow, advanced in years, and physically and mentally infirm, a presumption of fraud arises; and the burden is upon the plaintiff to prove that the notes in question were given for a valuable consideration, and that the transaction was just.

4. SAME — INSTRUCTIONS.

In such case an instruction to the effect that plaintiff's failure to return all his property to the tax assessor would not vitiate the notes sued on is properly refused as an unnecessary comment upon the evidence.

5. APPEAL — REVIEW — OBJECTION WAIVED.

Where the record shows that no specific grounds of objection to evidence were assigned, the action of the trial court in overruling the objections will not be reviewed.

Appeal from circuit court, La Fayette county; JOHN P. STROTHER, Judge.

Action on three promissory notes by M. A. Bogie against George N. Nolan, administrator of the estate of Mary Dowling. Verdict and judgment for defendant, and plaintiff appeals.

Peak, Yeager & Ball, for appellant. R. H. Field, for respondent.

BRACE, J.

In February, 1883, Mrs. Mary or May Dowling died in Kansas City possessed of real estate and personal property of the value of about $25,000. The plaintiff, a practicing physician in that city, for several years prior and up to her death, was her regular physician and medical attendant. Soon after her death, the defendant, who was the public administrator of Jackson county, took charge of her estate for administration, and thereafter, at the May term, 1883, of the probate court of said county, the plaintiff presented to said court, and procured to be allowed, as demands against said estate, three promissory notes, purporting to have been executed to him by the said Mary Dowling: One dated July 7, 1882, payable one year after date, for $12,000, with 12 per cent. interest; one dated September 5, 1882, payable one year after date, for $9,000, with 10 per cent. interest; and one dated January 10, 1883, payable one day after date, for $1,400, with 10 per cent. interest. The orders allowing these notes as demands against said estate were afterwards set aside by the probate court, and the plaintiff instituted this suit on said notes against defendant, as administrator of the estate of the said Mary Dowling, in the circuit court of Jackson county at Kansas City, from which a change of venue was taken to the circuit court of La Fayette county, where a trial was had, resulting in a verdict and judgment for defendant, from which plaintiff appeals, and a reversal of the judgment is urged on the ground that the trial court admitted illegal evidence for the defendant, rejected legal and competent evidence for the plaintiff, gave improper instructions for the defendant, and refused proper instructions for the plaintiff. The petition contained three counts, one on each of said promissory notes, and each containing the allegation that on the date thereof the said Mary Dowling, for value received, executed and delivered the promissory note therein counted upon. The answer of the defendant contained a general denial of each and every allegation of the petition, or any knowledge or information thereof sufficient to form a belief, and an averment, in substance, that, "from about the year 1875 to the time of her death, the plaintiff was the regular physician and medical attendant of the said Mary Dowling, and during all that period of time had the complete confidence and trust of the said Dowling in all things," and prayed the court to require of the plaintiff full proof that the said Mary Dowling executed said notes, and the consideration upon which they were based, if any The reply admitted that plaintiff was the regular physician and medical attendant of Mary Dowling during the period of time specified in defendant's answer, and denied the other allegations of the answer.

1. In vacation, before the trial, the defendant took the deposition of the plaintiff, and filed it in the cause, and the plaintiff, on the trial, when putting in his evidence in chief, offered to read his deposition, to which defendant objected, and the court sustained his objection, and refused to permit it to be then read. When the defendant came to put in his evidence, he offered to read the same deposition as statements and admissions of the plaintiff, to which plaintiff objected, "the said Bogie being then present in court." The court overruled the objection, and permitted the same to be read as statements and admissions of the said Bogie. On the authority of Priest v. Way, 87 Mo. 16, it is contended that the court committed error in permitting the declarations of the plaintiff, as contained in the deposition, to be read. The parenthetical statement in the bill, "the said Bogie being then present in court," cannot be considered as an assignment of that particular ground as an objection to the admissibility of the evidence; and, the objection being general only, for that reason, under the repeated rulings of this court, the plaintiff cannot insist upon having the action of the trial court, in this particular, reversed. But as the question sought to be raised can be gathered from the record without difficulty, and as the ruling upon it in the above case by a divided court was different from that in Pomeroy v Benton, 77 Mo. 82, it is proper that another expression of the view of this court upon the question should be given. In the case last mentioned the question was elaborately discussed, on principle and authority, by SHERWOOD, J., in a dissenting opinion in which Judge BLACK concurred; and, after a careful review of the authorities and due consideration of the argument pro and con., the writer hereof has arrived at the same conclusion reached by the learned judge in that opinion; i. e., that the declarations of a party to a suit, made in a deposition taken by his adversary, may be read in evidence against him on the trial in the same suit in which such deposition was taken, whether he be present or absent. He is none the less a party because his adversary has called him as a witness. That the legislature, in conferring upon a party the right to call upon his adversary to testify, and in providing means, by deposition, to procure the evidence of witnesses who might not be able to be in personal attendance upon the trial, did not intend to narrow the scope of inquiry, for the very truth of the matter in controversy, by abrogating that ancient, well-recognized, and hitherto unquestioned rule of evidence, that the declarations of a party to the suit may be given in evidence against him, — a rule that hitherto has had no respect for time or place, always presuming that a man's statements, as against himself, are truthful, whether made in court or out of court, on oath or in casual conversation, orally or in writing. They all rest on the same principle that a man is not apt to declare a fact against his own interest unless it be true. In principle, there can be no difference in the character of this evidence, whether the declarations are made in the deposition of a party taken in his own case then on trial, his deposition taken in another case to which he was a party, or taken as a witness in a case in which he was not party, and had no direct interest. They are admissible in each case for the same reason, — not as the deposition of a witness under the statute, but as the declaration of a party to the suit. In harmony with this principle and with each other are the cases of Kritzer v. Smith, 21 Mo. 296; Charleson v. Hunt, 27 Mo. 34, State v. Bank, 30 Mo. 626; and Pomeroy v. Benton, supra. The rule of evidence that makes these declarations admissible has not been trenched upon by the statute, nor can the deduction that it was so intended be fairly deduced from the terms used therein. If any mischief is likely to flow from its application to circumstances like those of the present case, a remedy therefor must be found in future legislation. Nothing in the law as it is now written forbids it. The ruling on this question in Priest v Way, supra, is disapproved. The full and satisfactory manner in which the subject is presented, and the authorities cited, in the dissenting opinion therein, obviates the necessity of a more elaborate discussion of the question in this case.

2. The administrator, Nolan, was examined as a witness, and testified that he took charge of the estate soon after Mrs. Dowling's death; that he made every effort to discover her estate, and made an inventory of all the personal property and money and notes belonging to her estate that he could find after diligent search...