Christofiel v. Johnson

• Decision Date: 11 January 1956
• Citation: 40 Tenn.App. 197,290 S.W.2d 215
• Parties: Mary Jane CHRISTOFIEL et al. v. Glenn JOHNSON, Administrator.
• Court: Tennessee Court of Appeals

Page 215

290 S.W.2d 215

40 Tenn.App. 197

Mary Jane CHRISTOFIEL et al. v. Glenn JOHNSON, Administrator.

Court of Appeals of Tennessee, Eastern Section.

Jan. 11, 1956.

Certiorari Denied by Supreme Court April 5, 1956.

Hodges & Doughty, Knoxville, for plaintiffs in error.

Clyde W. Key, Knoxville, for defendant in error.

McAMIS, Presiding Judge.

The plaintiff, Mary Jane Christofiel, claims to have sustained personal injuries while riding in an automobile operated by defendant's intestate, Kyle Anderson Wells. The trial court, following Waggoner v. Dorris, 17 Tenn.App. 420, 68 S.W.2d 142, held incompetent, as relating to a 'transaction' with the intestate, plaintiff's proffered testimony that she was in an automobile operated by the deceased and that it was being operated at 90 miles per hour into an intersection when it overturned killing the driver and injuring her. George Christofiel, father of Mary Jane Christofiel, sued in a separate count of the declaration for medical expenses incurred in the treatment of his daughter. Plaintiffs offered no further testimony and the Court directed a verdict for the Administrator. From the judgment dismissing the suit and overruling their motion for a new trial plaintiffs appeal insisting the Court erred in applying the 'Dead Man's Statute', Code, § 9780, providing:

'In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party.'

The case seems to be presented to us as turning largely on whether a tort action involves a 'transaction' in the sense of the statute. Counsel for the administrator cite and rely upon Newman v. Tipton, 191 Tenn. 461, 234 S.W.2d 994, 997 and quote from Mr. Chief Justice Neil's opinion the following statement:

'It cannot be doubted that the statute would apply in many tort actions in which the plaintiff undertakes to relate conversations and transactions had with the deceased. Thus in a suit for conversion of property the plaintiff would be competent to testify as to where he left it, i. e., in whose custody but could not testify as to any admissions made by the deceased that he had received it or what had become of it. The statute does not inhibit testimony as to defects in property ascertained merely by observation. In an action ex delicto the plaintiff is not prohibited from describing that which is open to the unrestricted observation of any and all persons.'

It will be observed that the Court said that the statute would apply in tort actions 'in which the plaintiff undertakes to relate conversations and transactions had with the deceased' but that it would not apply where the plaintiff in an action ex delicto does not undertake to testify to such matters but confines his testimony to 'that which is open to the unrestricted observation of any and all persons', as illustrated by the testimony of a plaintiff in an action of conversion as to where he left the property and in whose custody. It was also said that the statute would not exclude testimony as to defects in property, one of the questions involved in that case.

We think it would be pressing that case too far to say that it holds that the statute applies in all tort actions and to testimony of the survivor as to each and every fact necessary to sustain liability. In fact, that was a tort action wherein the plaintiff sued to recover for personal injuries sustained prior to the death of the intestate Mrs. Newman. The plaintiff, in an action against Mrs. Newman's administrator, was permitted to testify as to the alleged location of a step and poor lighting within the store.

To say that the statute does or does not apply in a tort action tends to confusion and, we think, attempts to differentiate between tort actions and actions ex contractu in applying the statute account for much of the seeming conflict in cases from other jurisdictions. In our view, as demonstrated by Newman v. Tipton, supra, it cannot be said that in tort actions there can be no such thing as a 'transaction' falling within the proscriptions of the statute. Nor can it be accurately said that everything pertaining to an action ex contractu is a 'transaction' in the sense of the statute. Illustrative cases of the ex contractu class include Minnis v. Abrams, 105 Tenn. 662, 58 S.W. 645; Klein v. York, 149 Tenn. 81, 257 S.W. 861, 31 A.L.R. 452; Brown v. Fuqua, 9 Tenn.App. 22.

Minnis v. Abrams is typical of the others. That was a suit to collect the balance due on a promissory note and to enforce a vendor's lien. The complainant relied on a new promise tolling the statute of limitations contained in a letter written by the maker of the note, since deceased. The court there said:

'The policy of the statute is to provide that, when one of the parties to a litigated transaction is silenced by death, the other shall be silenced by law. 1 Whart.Ev. § 466. It will be observed that the statute simply excludes proof of transactions with or statements by the deceased, but does not make the surviving party incompetent as to other matters. We do not think proof by the surviving party that he had a letter in his possession, and that the letter is in the handwriting of the deceased, is in contravention of the statute. These are independent facts which we hold may be proven by either party to the suit.'

Newman v. Tipton, supra, makes it plain that Tennessee rejects the view that the statute cannot apply in tort actions. According to the plain language of the opinion, it does apply to 'transactions' with the decedent though not to independent facts or observation of that which can be seen by any and all persons. This Court, citing 58 Am.Jur., ¹ Witnesses, Sec. 250, pages 163-164, held in Newman v. Tipton, supra, that the sounder rule is that the statute does not apply to all aspects of a tort action. We see nothing in the opinion of the Supreme Court in that case to the contrary.

So, we think, it would over simplify the problem to make the competency of the witness turn on the question of whether the action is in tort or ex contractu. The real question is whether, in a given case, the proffered testimony relates to a 'transaction with or a statement by the deceased.' In this case plaintiff by her own testimony could not establish that at the time of the accident she was an unwilling passenger; that defendant was a carrier for hire or even that she was his guest. Her relationship and how it came about would involve a transaction with the deceased. But it is not essential that she establish her relationship to the deceased. All she is required to do is place herself in...