Byars v. Austin

• Decision Date: 13 January 1969
• Docket Number: No. 45051,45051
• Parties: Harvey J. BYARS, Sr. v. Mrs. Wesson C. AUSTIN, Administratrix. Mrs. Wesson C. AUSTIN, Administratrix v. Harvey J. BYARS, Sr.
• Court: Mississippi Supreme Court

Page 11

218 So.2d 11

Harvey J. BYARS, Sr. v. Mrs. Wesson C. AUSTIN, Administratrix.

Mrs. Wesson C. AUSTIN, Administratrix v. Harvey J. BYARS, Sr.

No. 45051.

Supreme Court of Mississippi.

Jan. 13, 1969.

Rehearing Denied Feb. 3, 1969.

Charles C. Finch, M. Collins, Bailey, D. Briggs Smith, Jr., Batesville, for appellant.

Ethridge & Grisham, Oxford, for appellee.

RODGERS, Justice.

This is a damage suit for personal injuries which were received in a two automobile collision on January 27, 1964 in Lafayette County, Mississippi, on State Highway No. 328. The plaintiff was driving his 1955 Chevrolet automobile in a westerly direction, and Wesson C. Austin was proceeding easterly in a 1962 Chevrolet automobile. The automobiles collided. Wesson C. Austin lost his life in the accident, and Harvey J. Byars, Sr., was seriously injured. Harvey J. Byars, Sr., filed suit against Mrs. Wesson C. Austin, the administratrix of the estate of Wesson C. Austin, the deceased, in the Circuit Court of Lafayette County, Mississippi. The administratrix, Mrs. Austin, filed her answer and filed a counterclaim as administratrix under Mississippi Code 1942 Annotated section 1453 (1956), in which she sought damages for the wrongful death of her husband and also damages for the destruction of the 1962 Chevrolet automobile belonging to the deceased, Wesson C. Austin. The jury returned a verdict for the defendant and a judgment was entered in favor of Mrs. Wesson C. Austin, without damages. From this final judgment in administratrix's favor both the plaintiff, Harvey J. Byars, Sr., and Mrs. Austin have appealed to this Court.

The appellant, Harvey J. Byars, Sr., contends that the judgment should be reversed because, it is said, (1) the circuit court erred in applying the 'dead man statute,' section 1690, Mississippi Code 1942 Annotated (1956), to the facts in the case at bar; and (2) in the alternative the court erred in failing to hold that the administratrix waived the protection of the statute by introducing evidence of certain adverse admissions made by the appellant to a disinterested witness.

On the other hand, cross-appellant, Mrs. Wesson C. Austin, administratrix, contends that the trial court should have directed the verdict for the cross-appellant, and that the trial court erred in granting one of the instructions given on behalf of the plaintiff, appellant here.

Appellant seeks to have the judgment of the trial court reversed upon the theory that the testimony of a nurse, Mrs. Lorene Griffin, introduced on behalf of the administratrix, was such as to waive the protection afforded the administratrix by Mississippi Code 1942 Annotated section 1690 (1956).

The nurse's testimony reveals that after the accident the appellant, his son, and the deceased, Wesson C. Austin, were carried to Yalobusha General Hospital in Water Valley, Mississippi, where she worked, and that the appellant told her he had killed his son and that if he had just done what his son-in-law had told him the accident would not have happened. He said it was the first time he had been in the car in several days. He said he did not see the other automobile, that it came out from nowhere, that he was driving too fast, and that he had been sick recently. The appellant was recalled to the witness stand on rebuttal, and he denied that he told the nurse anything. He was then asked, 'Tell us what happened as you were driving along the road just before the collision occurred.' The court sustained an objection to this question.

The appellant cites as authority for this contention the case of Winchester v. Guyer, 202 Okl. 651, 216 P.2d 589 (1950). In Winchester the trial court sustained the objections to questions intended to elicit testimony from the defendant in contradiction of the testimony given by an adverse witness as to what the plaintiff had said after the death of Mr. Guyer. On appeal, the Supreme Court held that the defendant had a right to contradict the testimony of the witness and in so doing could tell what she had said to the witness's attorney. The Court in that case held simply that the claimant could tell her version of what she had said to the witness, although what she said was testimony with reference to what had occurred before the death of the intestate. This is true, it is said, since the adverse witness had testified that she gave a different story; that the jury was entitled to hear her version of the matters testified to by Mr. Schulte; therefore this evidence waived the protection of the statute prohibiting the testimony of the claimant to the estate. We do not believe that this case is contrary to the ruling of the trial Judge in the instant case, because the claimant here testified that he did not tell the witness what she testified he told her. He did not offer to testify that he told her something different. He proceeded to testify as to what occurred during the life of the decedent, not what he told her on the occasion testified to by the disinterested nurse.

The pertinent part of Mississippi Code 1942 Annotated section 1690 (1956) is in the following words:

'A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent. But such person so interested shall be permitted to give evidence in support of his claim or defense against the estate of the deceased person which originated after the death of such deceased person in the course of administering the estate. * * *'

There are many cases cited under this section of the Mississippi Code in which this Court has pointed out that a person can not be presented as a witness to testify to establish his claim or defense against the estate of a deceased person which originated during the lifetime of the deceased person. But does the introduction of a disinterested witness who testifies as to what the plaintiff said after the accident waive the protection afforded the personal representatives of the estate of a deceased person?

The general rule with reference to waiver is set out in 97 C.J.S. Witnesses § 243, at p. 729 (1957), wherein it is said:

'Introduction by protected party of admissions of hostile witness. As a general rule, the protected party does not waive the incompetency of a hostile witness to testify as to transactions or conversations with deceased by introducing in evidence admissions made by the hostile witness with respect to such transactions or conversations, but the hostile witness becomes competent to deny or contradict the testimony as to his admissions. * * *'

This Court has followed the foregoing rule in previous opinions with reference to waiver of the protection afforded the estate under Mississippi Code 1942 Annotated section 1690 (1956).

In the case of Martin v. Martin's Estate, 217 Miss. 173, 63 So.2d 827 (1953), this Court held, where the executor of Martin's estate introduced income tax reports of the claimant (petitioner claimed to be the common law wife of the decedent) made during the lifetime of decedent in which she called herself 'Mrs. Marie Moore' and not 'Mrs. Martin,' that this did not waive the protection afforded the estate by section 1690, Mississippi Code 1942 Annotated (1956), and that she could not testify to establish her claim that she was the common law wife of the deceased.

In the case of Veazey v. Turnipseed, 219 Miss. 559, 69 So.2d 379 (1954), this Court held that in a suit to establish a lost will defendant was not competent to testify under the 'dead man statute' as to what he did with an alleged will after a witness had delivered it to him because such testimony would support his claim against the estate of the decedent. The introduction of testimony of a witness with reference to this matter did not waive the protection afforded the estate by the statute.

We are of the opinion that the testimony of the nurse, Mrs. Lorene Griffin, was competent to show a declaration against interest by the plaintiff, Harvey J. Byars, Sr., made a short time after the accident. We are of the further opinion that the introduction of the statement made by the plaintiff after the death of the decedent, Wesson C. Austin, did not waive the protection afforded the estate by section 1690, Mississippi Code 1942 Annotated (1956).

The appellant, Harvey J. Byars, Sr., however, further contends that even if he were not permitted to introduce the rejected testimony of appellant in his suit against the estate of Wesson C. Austin, this testimony was, nevertheless, competent in defense of the cross-suit brought by the administratrix against appellant Byars for the death of Wesson C. Austin, and as authority for this position he cites Hawkins v. Rye, 233 Miss. 132, 101 So.2d 516, 77 A.L.R.2d 663 (1958).

In Hawkins we held that a defendant in a suit brought by persons under the authority of the 'wrongful death statute,' Mississippi Code 1942 Annotated section 1453 (1956), was brought for the benefit of the persons named in the statute, and not for the benefit of the estate of the deceased person, and therefore the defendant could testify in his own defense. The fact that the suit was brought in the name of the administrator did not change this rule, and the Court said:

'The suit against him (the defendant witness) was not an action by the estate but was an action brought by the administrator on behalf of surviving heirs named in the wrongful death statute.' 233 Miss. at 143, 101 So.2d at 520.

This contention brings squarely before the Court the posture of this action, and the record before us on appeal. It will be recalled that the appellant sued the estate of the deceased, Wesson C. Austin; whereupon, the administratrix not only answered the suit against the estate, but counterclaimed against the appellant, Harvey J. Byars, Sr., for the death of Wesson C. Austin and for $1,182.90...