O'Connor v. Slatter

• Decision Date: 14 February 1908
• Citation: 93 P. 1078,48 Wash. 493
• Court: Washington Supreme Court
• Parties: O'CONNOR v. SLATTER.

93 P. 1078

48 Wash. 493

O'CONNOR v. SLATTER.

Supreme Court of Washington

February 14, 1908

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by John O'Connor against Bessie Slatter, administratrix of John Slatter, deceased. From a judgment for defendant plaintiff appeals. Reversed, and new trial ordered.

Merrill, Oswald & Merrill, for appellant.

Roche &amp Onstine, for respondent.

RUDKIN J.

This case was before this court on a former appeal, where a full statement of the issues will be found. 89 P. 885. A retrial resulted in a verdict and judgment in favor of the defendant from which the present appeal is prosecuted.

The principal errors assigned on this, as on the former appeal relate to the rulings of the court on the admission of testimony. On the former appeal it was contended that the surviving wife was not a competent witness to testify to a transaction between a third person and her deceased husband in an action brought by such third person against the surviving wife as executrix of the deceased husband's estate. This contention we refused to sustain. It is now contended that, by testifying fully to such transaction, the surviving wife waived her right to object to the competency of the adverse party to testify to the same transaction. This proposition, thus broadly stated, we likewise refuse to sustain. Cases have been cited from other jurisdictions sustaining the contention of the appellant in this regard, but they are all based on statutes differing materially from the statute of this state. As said by us on the former appeal: 'No statute exactly like ours has been called to our attention by the parties to this appeal, and, upon independent investigation, we have been unable to find any using the same language in the same order as ours. The authorities in other states upon similar statutes shed but very little light upon the question presented here.' Doubtless one of the objects of the statutes is 'to prevent interested parties from testifying to transactions and statements made by a deceased person when there might be no person to rebut such testimony,' as declared in the former opinion, but manifestly the operation of the statute does not depend upon whether there are or are not others who may testify to the transaction or statement. Death has sealed the lips of one of the parties, and the statute imposes the same silence upon the other. The prohibition of the statute is absolute and unconditional. It admits of no qualification or exception, and it is not the province of this court to add to it or take from it. We are satisfied, therefore, that the court below correctly ruled that the appellant was not competent to testify to any transaction had with or statement made by the deceased, regardless of the testimony that may have been given by other witnesses. The prohibition of the statute, however, extends only to transactions had by the appellant with the deceased, or to statements made to the appellant by the deceased. It does not extend to all facts to which the deceased might testify if living, and we are satisfied that the court below extended the prohibition too far. The respondent testified that she was present at the appellant's bank when the notes in suit were indorsed, and testified fully to all that transpired there. The appellant was called as a witness in his own behalf, and was asked the following question: 'I will ask you to state whether or not this defendant was present at the time the notes in suit were indorsed by John Slatter.' To this question an objection was interposed and sustained, on the ground that it related to a transaction with a deceased person. This ruling was plainly erroneous. The testimony was important, as it tended directly to contradict the testimony of the respondent previously given, and by no possible rule of construction can it be held that the testimony offered related to a statement made by or transaction had with the deceased. Nor was the error cured by the following testimony admitted before the respondent had testified: 'Q. I will ask you who was present at the time John Slatter signed his name on these notes. A. Myself, John Slatter, Charles Graves, and James O'Connor.' By a process of elimination the jury might determine from this answer that the respondent was not present, but the testimony did not have the force or effect of a direct denial that she was present after she had testified in her own behalf. The appellant was further asked whether the notes had been changed since he received them from the deceased. This in our opinion was an indirect way of asking what their condition was when received from the hands of the deceased, and was a palpable attempt to evade the statute. The objection was therefore properly sustained.

It is contended that other testimony was excluded tending to show statements made by the respondent and transactions had with her and not with the deceased, but what we have said will be a sufficient guide for the court on a retrial.

The court charged the jury as follows: 'In order to complete the title--to transfer the title--it was necessary that the person holding the note must place his name upon the back of it and deliver it to the purchaser.' The giving...