Brown v. First Nat. Bank of Douglas County

• Decision Date: 03 January 1911
• Citation: 49 Colo. 393,113 P. 483
• Parties: BROWN v. FIRST NAT. BANK OF DOUGLAS COUNTY.
• Court: Colorado Supreme Court

113 P. 483

49 Colo. 393

BROWN v. FIRST NAT. BANK OF DOUGLAS COUNTY.

Supreme Court of Colorado

January 3, 1911

Rehearing Denied Feb. 6, 1911.

Appeal from District Court, Douglas County; Louis W. Cunningham Judge.

Action by the First National Bank of Douglas County against Mary E Brown, as administratrix of the estate of Edward P. Brown deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

S. H. Calhoun, John R. Smith, and H. B. Woods, for appellant.

Murray & Ingersoll, for appellee.

HILL J.

The appellee filed its claim in the county court of Douglas county against the estate of Edward P. Brown, deceased. The claim was allowed. The administratrix appealed to the district court, where judgment was again rendered against the estate in the sum of $2,922.43, from which this appeal is prosecuted.

The errors relied upon will be considered in the order presented.

The first pertains to the alleged disqualification of the witness Dobell. He was the cashier of the appellee (a national bank) also one of its stockholders and a member of its board of directors, and for these reasons it is urged he was directly interested in the event thereof, the hence disqualified under general section 4816, Mills' Ann. St.; the party defending being the administratrix of the estate of a deceased person. This section of our statutes has been passed upon repeatedly by this court, as well as the Court of Appeals, and it has been uniformly held that it prohibits a party to the action, or any person directly interested in the event thereof, from giving testimony of his own motion or in his own behalf, when the adverse party sues or defends as the administrator of a deceased person, unless the testimony is admissible under one of the exceptions enumerated in the section. Whitsett v. Kershow, 4 Colo. 419; Gilham et al. v. French, 6 Colo. 196; Palmer v. Hanna, 6 Colo. 55; Levy v. Dwight, 12 Colo. 101, 20 P. 12; Rathvon v. White, 16 Colo. 41, 26 P. 323; Temple v. Magruder, 36 Colo. 390, 85 P. 832; Cooper v. Wood et al., 1 Colo.App. 101, 27 P. 884; Jones v. Henshall, 3 Colo.App. 448, 34 P. 254; Williams v. Carr, 4 Colo.App. 363, 36 P. 644; Rogers v. McMillen, 6 Colo.App. 14, 39 P. 891. The latest expression upon the subject appears to be that in the case of Temple v. Magruder, supra, in which this court, speaking through Mr. Justice Goddard, at page 392 of 36 Colo., at page 832 of 85 Pac., said: 'By the plain and positive provision of this statute, the appellee was incompetent to testify in the cause of his own motion, and over the objection of appellant, upon any matter, or at all. That this is the purpose and meaning of this statute is settled by previous decisions of this court and of the Court of Appeals.'

The argument of counsel that, even if the witness was incompetent, the prohibition does not apply to a portion of this testimony not covered in the exceptions enumerated in the statute, is not well taken. This section, as construed by former decisions, makes him incompetent to testify upon any such matters. The competency of the witness is not affected by the character of the testimony which he may give, nor is it dependent upon circumstances of this nature. Therefore it is clear that if Mr. Dobell, by virtue of being a stockholder in the appellee company, is a person directly interested in the event thereof, the greater part of his testimony was improperly received. The judgment was in favor of the bank. It increased its assets to that extent, which would increase the value of the witness' stock its proportion. To all intents and purposes, the stock of the bank is the owner of its assets, and it is useless to argue that anything which adds to the assets of the bank does not, in like proportion, add to the value of the stock of the bank and to the direct interest of the stockholder. In 1 Greenleaf on Evidence (15th Ed.) § 390, it is said: 'The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment.' At common law a stockholder's interest would exclude him from becoming a witness for the corporation generally, recognizing the rule that he was a party interested in the result of the action, although he might be a competent witness to identify its books, verify its records, etc. Ryder v. Alton & Sangamon R. R. Co., 13 Ill. 516; Peake v. Wabash R. R. Co., 18 Ill. 88; 1 Phillipps on Evidence, 39.

Another reason why this court should hold that stockholders are directly interested is upon account of the construction given to the act by the Supreme Court of Illinois, from which state ours appears to have been taken and is in its exact language. The general rule is that in adopting the statutes of another state we adopt the construction theretofore given it by the courts of that state. In the case of First National Bank v. Dunbar, 19 Ill. App., in passing upon this subject, at page 561, that court said: 'There was no error in holding that the testimony of the directors of the bank was incompetent evidence. They were all stockholders and parties in interest, and defendant in error was suing as the administrator of a deceased person.' In the case of Consolidated Ice Machine Co. v. Keifer, Adm'r, 134 Ill. 481, 25 N.E. 799, 10 L.R.A. 696, 23 Am.St.Rep. 688, on this subject the court said: 'The brewing company was a corporation, and Heim, being its president and a stockholder therein, was interested, and therefore incompetent to testify generally on behalf of the corporation, when called adversely to the plaintiff.' In the case of Albers Com. Co. v. Sessel, 193 Ill., at page 155, 61 N. E., at page 1075, the court said: 'We have held that stockholders in a corporation are interested within the meaning of this section of the statute, and are incompetent to testify against the representatives of a deceased party in their own behalf.'

For these reasons we conclude that Mr. Dobell was a person directly interested in the result of the action, and that the court erred in permitting his testimony to be received except in so far as it pertains to facts admissible under any of the exceptions enumerated in the section; but the errors committed in this respect were without prejudice to the appellant.

The trial was to the court, and, entirely disregarding the incompetent testimony of the witness Dobell, there is sufficient competent uncontradicted evidence by the witness Lazear upon the same points to justify the findings of the court, so far as the facts covered by the objectionable testimony of the witness Dobell are concerned. From our examination of the record, was find no testimony contradictory to that given by Mr. Lazear (the national bank examiner) which was the same as and covered all objectionable facts testified to by the witness Dobell. We do not understand counsel to claim otherwise, at least this statement was made in the answering brief, and counsel in their reply have failed to point out in any respect wherein this statement was incorrect. In such cases the judgment is not subject to reversal on account of the admission of such erroneous evidence. Kilham et al. v. Western Bank & Safe Deposit Co., 30 Colo. 365, 70 P. 409; Krippendorf-Dittman Co. v. Trenoweth et al., 35 Colo. 481, 84 P. 805; Moynahan v. Perkins, 36 Colo. 481, 85 P. 1132; Butler v. Phillips, 38 Colo. 378, 88 P. 486; Chittenden, Adm'r v. King Shoe Co., 38 Colo. 187, 88 P. 183; Freeman v. Peterson et al., 45 Colo. 102, 100 P. 600.

Error is alleged in admitting the books of the bank as evidence. It is claimed that no proper foundation had been laid, as required by section 4817, Mills' Ann. St. This section relates to claims founded on book accounts, etc., where certain facts are sought to be established by such entries. This is not the question here. The testimony is that Mr Brown...