Clayton v. Ogden State Bank

• Decision Date: 02 November 1933
• Docket Number: 5309
• Citation: 26 P.2d 545,82 Utah 564
• Court: Utah Supreme Court
• Parties: CLAYTON v. OGDEN STATE BANK

26 P.2d 545

82 Utah 564

CLAYTON v. OGDEN STATE BANK

No. 5309

Supreme Court of Utah

November 2, 1933

Appeal from District Court, Second District, Weber County; George S Barker, Judge.

Action by N.W. Clayton against the Ogden State Bank, administrator with the will annexed of the estate of Harry D. Brown deceased. From a judgment for defendant, plaintiff appeals.

AFFIRMED.

J. D Skeen and E. J. Skeen, both of Salt Lake City, for appellant.

Ingebretsen, Ray & Rawlins and J. M. Christensen, all of Salt Lake City, for respondent.

MOFFAT, J. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

MOFFAT, J.

This is an action against the Ogden State Bank as administrator with the will annexed of the estate of Harry D. Brown, deceased, for wages for services alleged to have been rendered by plaintiff for the deceased. The plaintiff endeavored to establish a claim against the decedent's estate for a sum in excess of $ 5,000 under an alleged oral contract made with deceased in 1922. The services are said to have terminated in 1925. The decedent lived till May 4, 1930. No action was taken on the alleged account until the filing of this action in December, 1931.

The answer is a general denial and a defensive plea of the statute of limitations.

At the trial the plaintiff was the only witness called except counsel for defendant was called by plaintiff and interrogated concerning a stipulation and the taking of a deposition. Upon the trial the defendant objected to the plaintiff testifying upon the ground that plaintiff was incompetent to testify under subdivision 3, § 7123, Comp. Laws Utah 1917, which provides:

"The following persons cannot be witnesses: * * *

"3. A party to any civil action, suit, or proceeding, and any person directly interested in the event thereof, and any person from, through, or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit, or proceeding claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, * * * as to any statement by, or transaction with, such deceased, insane, or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent, or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing suing or defending in such action, suit, or proceeding."

Appellant assigned eight errors, only three of which are argued. Errors assigned but not argued are deemed abandoned. Hansen v. Oregon Short L. R. CO., 55 Utah 577, 188 P. 852. The three errors upon which appellant relies, stated in his own language, are:

1. "The trial court committed reversible error in sustaining objection to plaintiff's testimony for the reason that the defendant waived its right to object to his competency under Subd. 3, Sec. 7123, Comp. Laws Utah, 1917, when it took his deposition prior to the trial."

2. "The court erred in sustaining defendant's objections to plaintiff's offer in evidence of the deposition marked exhibit 'B,' the letters marked exhibits 'A' and 'C' and the telegram marked exhibit 'D.'"

3. "The court erred in sustaining objections to plaintiff's offer to testify as to the handwriting of decedent in exhibit 'C.'"

At the trial the plaintiff (appellant) was permitted to testify as to his acquaintance with deceased, that he had corresponded with him, and to other preliminary matters. The court precluded the plaintiff from testifying as to conversations with the deceased bearing on the facts in controversy, or from identifying and introducing documents which were asserted to be evidence in support of his claim. No proof was offered as to the presentation to and rejection of the claim by the administrator before suit.

It appears from the record that the deposition of the plaintiff was taken before the trial of the cause. This was done in pursuance of a stipulation. Omitting the title and the formal parts, the part of the stipulation claimed by appellant to constitute a waiver such as to permit its introduction or allow the plaintiff to testify, reads:

"The parties * * * stipulate and agree that the deposition of N.W. Clayton, plaintiff herein, may be taken. * * * The deposition when taken, shall be certified to * * * and upon the trial of this cause may be offered or received in evidence on behalf of either party hereto, subject to any objection (excepting as to the form thereof) that might be interposed if the witness were present and testifying at the trial." (Italics added.)

It is apparent from the assignments made and the arguments and authorities presented that the force and applicability of the statute precluding the plaintiff from testifying is recognized, unless defendant's right to invoke the protection of the statute has been waived by the stipulation and taking of the deposition of the plaintiff, in pursuance thereof.

That plaintiff's exhibits, the letters marked Exhibits A and C and the telegram marked Exhibit D, were not admissible in evidence, is clear. If it be conceded that the letter, Exhibit C, is in the handwriting of the deceased, still there is nothing in the letter tending in any way to prove the alleged contract. The letter was properly excluded as was likewise the telegram. Neither can be construed by any possibility to sustain the alleged oral contract, and Exhibit A, the letter from plaintiff to deceased, is purely a self-serving document and aside from the effect of the statute or other connecting evidence was properly rejected by the trial court. Kislingbury v. Evans, 40 Utah 356, 121 P. 571.

As to when an incompetent witness may be permitted to testify because of conduct or waiver of the adverse party, counsel for both parties to this proceeding have collected and argued the cases. Appellant's position maintains a waiver. Respondent insists there was no waiver. Many of the cases cited by appellant when carefully read fall within the provision of our own statute, that is, the witness was called by the adverse party, thus removing the bar the statute interposes. As to this proposition cases need not be cited.

The question here dividing the parties is: "When is a witness called by the adverse party?" Appellant maintains that the taking of a deposition by the adverse party constitutes a waiver or brings the case within the terms of the statute. Many of the cases refer to the taking of a deposition as a waiver. As we see the situation, the elements of a waiver are not present. The real question is whether the adverse party has called the witness in his behalf and thereby removed the incompetency. The witness referred to by the statute is incompetent, "unless such witness be called to testify * * * by such adverse party." When the witness is so called, the incompetency is by that act removed.

Some of the cases hold that the taking of a deposition by the adverse party renders the witness competent to testify, others hold that the taking of the deposition and the further step of filing it with the court is requisite, while others hold that the deposition or part of it must be offered in evidence before the incompetency is removed and then only as to the matters offered.

A few typical cases may be noted:

Allen v. Pollard, 109 Tex. 536, 212 S.W. 468, 469:

"With his [Allen's] testimony compelled under oath and obtained at the instance of the adverse party through the force of the law * * * Allen must be regarded as having been called by his adversary to testify concerning the transaction with the decedent * * * equivalent * * * to placing him upon the stand."

Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S.W. 754, 756, 64 Am. St. Rep. 567:

"When plaintiff took the deposition of Vette [the defendant], and filed it in the cause, it thereby waived his incompetency as a witness for all purposes, whether the deposition was read upon the trial or not."

Bartlett v. Bartlett, 15 Neb. 593, 19 N.W. 691:

"It is conceded that, if objection is made at the proper time, the plaintiff was an incompetent witness under the provisions of the law in force at the time of the trial. But that question is not before us. The benefit of the statute can be waived, and in that event the witness becomes competent. The deposition of the plaintiff appears in this record. * * * There is no record of any objection being made to it on the trial, and the appellants quote from it in their brief. The presumption must be that objection to it was waived, and that it was read on the trial."

McClenahan v. Keyes, 188 Cal. 574, 206 P. 454, 455:

"The administrator took the testimony of the plaintiff by a deposition." Held: "The administrator made him a witness, and thereby waived the objection of incompetency."

Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869, 871: An action by the executors of Thomas Allen to recover against Chouteau:

"Allen's [deceased's] deposition having been filed in this cause, and read by the plaintiffs, the court properly allowed Chouteau [defendant] to testify in his own behalf," but only as to matters covered by the deposition.

Barrett v. Cady, 78 N.H. 60, 96 A. 325, 328:

"By taking the plaintiff's deposition as to matters to which he could not testify against objection, the defendant made the plaintiff a witness in the case and waived the objection to his testimony. Clark v. Clark, 76 N.H. 430, 83 A. 515."

Wyatt v. Chambers (Tex. Civ. App.) 182 S.W. 16, 19:

"The filing of the direct interrogatories was the 'calling' of the witness in this instance, and she was therefore called by the...