Ahlquist v. Pinski

• Decision Date: 16 October 1947
• Docket Number: 8711.
• Parties: AHLQUIST v. PINSKI.
• Court: Montana Supreme Court

185 P.2d 499

120 Mont. 355

AHLQUIST v. PINSKI.

No. 8711.

Supreme Court of Montana

October 16, 1947

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by Mary Ahlquist against A. A. Pinski, as executor of the estate of Anna Medich Popp, deceased, to recover money allegedly loaned to the deceased, wherein the defendant filed a counterclaim. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

J. H. Corcoran and E. J. McCabe, both of Great Falls, for appellant.

E. J Stromnes and S. M. Swanberg, both of Great Falls, for respondent.

CHOATE Justice.

This is an appeal by defendant executor of the estate of Anna Medich Popp, deceased, from a judgment of the district court of Cascade county awarding plaintiff $520, besides interest and costs, for money loaned decedent for which a claim had been presented against decedent's estate and rejected. Defendant denied the making of the loan and asserted a counterclaim against plaintiff in the amount of $900.

In support of her case plaintiff testified to the following facts: That she had loaned Anna Medich Popp, who was her mother, the sum of $520. The loan was made May 1, 1940, while plaintiff was residing with her mother in the latter's home at Great Falls. Plaintiff testified that Mrs. Popp knew that plaintiff had in the neighborhood of $500 of insurance money left her by her late husband and she asked her daughter to lend her that money to which the latter agreed. Plaintiff told her mother that she would make the loan on condition that the money should be repaid either on plaintiff moving away from her mother's premises or at the time of her mother's death. Mrs. Popp agreed to that and (plaintiff testified) 'told me she would repay me either when I left her or when she died. It would be understood I would receive it in the estate.' Thereupon plaintiff loaned her mother $520 in cash. On September 1, 1940 plaintiff and her mother 'got into an argument' and plaintiff moved away from her mother's residence. On the day she moved plaintiff had a conversation with her mother about repayment of the loan. Her mother first spoke to plaintiff in the Slovac tongue and 'told me not to take anything that belonged to her [the mother].' Plaintiff then asked her mother 'in American' if she would let her have the money she had loaned to her to which the mother replied: 'I owe you $520 and I will pay you every cent of it.' Her mother did not, however, then or at any other time, repay the loan or any part of it.

Upon Mrs. Popp's decease plaintiff presented a creditor's claim against her estate for the amount of said loan, which claim was disallowed by defendant executor and the present action was instituted to recover thereon.

Prejudicial error by the trial court is predicated on the following assignments: 1. In permitting plaintiff over objection to testify to the fact of making the loan in question to her mother, in that said witness was incompetent to testify to such fact under section 10535, Revised Codes 1935, and that no sufficient foundational evidence was introduced to qualify the witness to so testify.

Section 10535 (subdivision 3) reads in part as follows: 'The following persons cannot be witnesses: * * * 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, as to the facts of direct transactions or oral communications between the proposed witness and the deceased, excepting when the executor or administrator first introduces evidence thereof, or when it appears to the court that, without the testimony of the witness, injustice will be done.' (Emphasis ours.)

It is apparent that plaintiff's testimony summarized above comes within the prohibition of section 10535, subdivision 3, unless it is rendered admissible by the proviso italicized above. This court has on several occasions considered the applicability of the statute above quoted to differing states of fact. In Sharp v. Sharp, 115 Mont. 35, 139 P.2d 235, we laid down the following rules: That the application of section 10535 must vary with the circumstances presented to the trial court and that in reviewing the trial court's decision the Supreme Court should reverse only when it is clear that an error has been made and that this court must examine the record for testimony upon which it is reasonable to conclude that there was credibility in such party's claim. To the same effect is Roy v. King's Estate, 55 Mont. 567, 179 P. 821. In Wunderlich v. Holt, 86 Mont. 260, 283 P. 423, 425, we said: 'It is lodged in the sound discretion of the court to determine in each case, as it develops during the trial, whether the testimony is necessary to enable the plaintiff to make out a prima facie case, and thus prevent an injustice.'

In Pincus v. Davis, 95 Mont. 375, 384, 26 P.2d 986, 990, this court used the following language, later quoted with approval in Phelps v. Union Central Life Ins. Co., 105 Mont. 195, 71 P.2d 887; 'The trial court should not admit the testimony of such a witness until sufficient other testimony has been admitted to warrant the court, in the exercise of its discretion, to render a ruling in favor of the questionable testimony. The court must exercise this discretion with caution and reasonable strictness, and not so loosely as to infringe on the general rule, unless it reasonably appears that otherwise injustice will result, and therefore the exception rather than the rule should apply. Wunderlich v. Holt, 86 Mont. 260, 283 P. 423 [424]; Langston v. Currie, 95 Mont. 57, 26 P.2d 160.'

The question for determination is therefore: Was sufficient foundational evidence introduced to warrant the trial court in exercising its discretion in favor of the testimony in question and permitting plaintiff to testify concerning her conversations with her mother relative to the loan. The supporting evidence consists chiefly of the following testimony given by Marie Wallenberg: That about September 1, 1940, witness and her husband were helping plaintiff move her belongings from her mother's residence; that on that occasion plaintiff's mother came into the house and talked with plaintiff in witness's presence; Mrs. Popp talked first in Slovak (or some other language with which witness was not familiar); then plaintiff said to her mother, 'Could I have the money you owe me, mother?' to which Mrs. Popp replied in English, 'Yes, I owe you $520 and you will get every cent of it.' We think it clear that this testimony did tend to esablish plaintiff's claim that her mother owed her $520 and had promised to repay it. However, Mrs. Wallenberg's testimony did not tend to establish a number of other matters which were necessary to be proven in order to entitle plaintiff to recover. It did not tend to show when or where the loan was made, how the indebtedness was created, when the loan was to be repaid, whether or not it was yet due or when, how, or from whom plaintiff might expect 'to get every cent of it.' All these matters were supplied by the plaintiff's testimony and the record shows that she could not have furnished any other evidence, oral or written, or produced any other witnesses to prove said facts.

It is our opinion that the testimony given by Marie Wallenberg was insufficient standing alone to establish plaintiff's claim but that it was sufficient to justify the court in concluding as it did that without plaintiff's testimony injustice would be done. Wunderlich v. Holt, supra. There was therefore no abuse of discretion on the part of the trial court in admitting plaintiff's testimony concerning her conversations with her mother about the making and payment of the loan.

2. It is next contended that the trial court erred in admitting in evidence a telegram received by plaintiff from her mother reading, 'Received money okay.' Defendant's answer set up a counterclaim against plaintiff for $900 in which it is alleged that during her lifetime deceased made a gift causa mortis to plaintiff and her sister in the amount of $2,100. This gift was allegedly revoked by decedent and $900 of said original gift of $2,100 had never been repaid. Upon this issue which was decided by the jury in her favor, plaintiff testified that she repaid the entire $2,100 to her mother and that in order to get an acknowledgment from her mother that the money had been...