Anderson v. Wirkman
| Decision Date | 01 May 1923 |
| Docket Number | 5124. |
| Citation | 215 P. 224,67 Mont. 176 |
| Parties | ANDERSON ET AL. v. WIRKMAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; C. E. Comer, Judge.
Action by Mary Anderson and others against Andrew Wirkman, as administrator of the estate of Jacob Maki, deceased. Judgment for plaintiffs and defendant appeals. Judgment affirmed on condition of remittitur.
Shea & Wiggenhorn, of Billings, for appellant.
John G Skinner and H. A. Simmons, both of Red Lodge, for respondents.
On September 30, 1919, Jacob Maki shot and killed L. O. B Anderson, and then committed suicide. A claim was duly presented against Maki's estate but rejected, and this action was then instituted by the heirs of Anderson against the administrator of Maki's estate to recover damages and such proceedings were had therein that a verdict was returned in favor of the plaintiffs. A new trial was denied, and defendant appealed from the judgment.
1. Mary Anderson, widow of L. O. B. Anderson, was the only surviving witness of the killing, and, at the opening of the trial, counsel for defendant objected to her testifying to the transactions which occurred immediately before the shooting. The objection was overruled, and error is predicated upon the ruling.
Section 10535, Revised Codes of 1921, provides, among other things, that a party to an action prosecuted against an administrator upon a claim or demand against the estate of a deceased person cannot be a witness as to the facts or direct transactions or oral communications between the proposed witness and the deceased, excepting when it appears to the court that, without the testimony of the witness, injustice will be done.
The complaint charges that Maki wrongfully killed Anderson. The answer, while admitting the killing by Maki, denied that it was wrongful, and in effect pleaded that it was done in necessary self-defense. The burden was therefore upon plaintiffs to prove that Anderson's death resulted proximately from the wrongful act of Maki, and, since Mrs. Anderson was the only surviving witness of the tragedy, her testimony was indispensable. If, then, the killing was wrongful, and if we assume that these plaintiffs had a meritorious cause of action, that cause of action would have been defeated by excluding the testimony of the only witness who could detail the facts and circumstances tending to prove that the killing was wrongful.
Under section 7891, Revised Codes of 1907, the disqualification of a witness in the situation of Mrs. Anderson was absolute, but by an amendment made in 1909 (Laws of 1909, p. 80) the exception referred to above and now incorporated in section 10535, and another exception not material here, became and have since remained a part of the law of this state.
In Roy v. King's Estate, 55 Mont. 567, 179 P. 821, this court considered the amendment above, and concerning it said:
"The evident purpose of this provision was to declare the plaintiff in the action an incompetent witness, unless the defendant waives the incompetency, which he may do, as provided in the first exception, or unless, under the second exception, it appears to the court that, if the witness is not allowed to testify, recovery cannot be had upon a cause of action which is obviously meritorious."
We are satisfied that the act was construed correctly, and, in view of all the circumstances of this case, and particularly in view of the fact that the killing by Maki was admitted in the pleadings, it cannot be said that the court abused its discretion in permitting Mrs. Anderson to testify to the transactions which preceded immediately the act of killing.
2. A witness, Hakala, testified from mortality tables that the expectancy of Anderson's life was 18.8 years. While the procedure was somewhat irregular, defendant cannot complain. The court could have taken judicial notice of standard tables of mortality, and, if it was satisfied that the tables produced were of that character, further identification was not necessary, and it was altogether immaterial that the witness read from the tables instead of having the tables themselves introduced in evidence. Stephens v. Elliott, 36 Mont. 92, 92 P. 45.
3. It is urged that the complaint is insufficient, in that it fails to disclose that Anderson's death preceded the death of Maki. If it were necessary that the fact appear, it is sufficient to say that it does appear. It is elementary that a material allegation omitted from the complaint may be supplied by the answer (Stephens v. Conley, 48 Mont. 352, 138 P. 189, Ann. Cas. 1915D, 958), and in this instance defendant alleged in his answer, as a second defense:
"That, after the injuries complained of by the plaintiff, and after the shooting and death of the said L. O. B. Anderson, and before the commencement of this action, to wit, on the 30th day of September, 1919, the said John Maki died, and thereupon any cause of action that plaintiff may have had abated."
While it is true that the court instructed the jury that this so-called second defense did not constitute a defense, nevertheless defendant was bound by the allegation that Maki died after the death of Anderson, and evidence was introduced which, though circumstantial, was ample to show that such was the fact.
4. This action is authorized by section 6486, Revised Codes of 1907 (section 9076, Rev. Codes 1921), which is modeled after the English statute known as Lord Campbell's Act (Stats. 9 and 10, Vict. C. 93), and which creates in favor of the heirs of one whose death results from the wrongful act of another, a cause of action for damages against the person causing the death.
It is earnestly urged that, even though Anderson died first, and conceding that the killing was wrongful and that plaintiffs had a meritorious cause of action against Maki, that cause of action abated upon the death of Maki, and cannot be prosecuted against his estate.
It was the rule at common law that an action in tort abated upon the death of either party (17 C.J. 1232), and that rule prevailed in this jurisdiction until it was superseded by statute (section 5672, Rev. Codes 1921). Section 9086, Revised Codes of 1921, which has been in force in Montana since 1883 (Laws 1883, p. 98), provides:
"An action, or cause of action, or defense, shall not abate by death, or other disability of a party, or by the transfer of any interest therein," etc.
In Melzner v. Northern P. Ry. Co., 46 Mont. 162, 127 P. 146, we held that the section above is a general survival statute. In First National Bank v. Cottonwood Land Co., 51 Mont. 544, 154 P. 582, that doctrine was reaffirmed, and it was held that the right of action against a director of a corporation who had failed to make the report required by law, survived the death of the delinquent director and could be prosecuted against his estate. It was there said:
"The cause of action survives the death of the party in the wrong as well as the death of the one whose rights are infringed."
In Kennedy v. Rogan, 52 Mont. 242, 156 P. 1078, it was held that a cause of action for seduction or breach of promise to marry survives the death of the wrongdoer, and may be prosecuted against his personal representative.
Counsel for defendant insist that the broad statement contained in the opinion in the Melzner Case should be restricted, and the decision in each of the other cases should be overruled, and, as the foundation for this contention, it is urged that section 9086 does not in terms provide for the survival of a cause of action against a tort-feasor, and, since that statute is in derogation of the common law, it must be construed strictly, and, if construed strictly, it provides only for a survival of the cause of action in favor of the personal representative of the innocent deceased person and against the person wrongfully causing his death, thereby excluding the idea that the Legislature intended that the cause of action should survive the death of the wrongdoer.
While it is true that section 9086 states a rule diametrically opposed to the rule which prevailed at common law, it is not true that, for that reason or any other, it should be construed strictly. Section 4, Revised Codes of 1921, declares the law of this state as follows:
Counsel cite Hamilton v. Jones, 125 Ind. 176, 25 N.E. 192; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73, 11 L R. A. (N. S.) 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457; Willard v. Mohn, 24 N.D. 390, 139 N.W. 979; and Rinker v. Hurd, 69 Wash. 257, 124 P. 687, in support of their contention, but without avail. In each of the first three cases the decision was to the effect that the particular statute involved--a statute in each instance corresponding to Lord Campbell's Act--did not authorize the maintenance of a tort action against the personal representative of the deceased tort-feasor, a conclusion with which we agree fully, but no one familiar with the legislation would ever suggest that Lord Campbell's Act is a survival statute. Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 P. 960. Rinker v. Hurd was decided under a survival statute of Washington, which contains an exception which clearly warranted the conclusion reached therein. Not one of the cases is applicable here. Other courts have held that a tort action abates with the death of the wrongdoer, but, so far...
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