Cree v. Becker

• Court: Colorado Supreme Court
• Writing for the Court: BAILEY, J.
• Citation: Cree v. Becker, 49 Colo. 268, 112 P. 783 (Colo. 1911)
• Decision Date: 03 January 1911
• Parties: CREE v. BECKER et al.

112 P. 783

49 Colo. 268

CREE v. BECKER et al.

Supreme Court of Colorado

January 3, 1911

Error to District Court, El Paso County; Louis W. Cunningham Judge.

Action by Isaac B. Cree, for the use and benefit of the Shurtloff Consolidated Gold Mining Company, against Jacob Becker and others. Lee Becker, as administrator of the estate of Jacob Becker, was substituted as party defendant. From a judgment of dismissal the plaintiff brings error. Affirmed.

Harris & Price, for plaintiff in error.

Orr & Cunningham (H. M. Mason, of counsel), for defendant in error.

BAILEY J.

The plaintiff, Isaac B. Cree, as a stockholder in the Shurtloff Consolidated Gold Mining Company, instituted this action for the use and benefit of the company, upon a bond given to it for the payment of $10,175.55, signed by Jacob Becker, as principal, and John Nolon, as surety. The two were originally joined as parties defendant. After the commencement of the suit, but before trial, Jacob Becker died and his administrator was substituted in his stead and defends in that capacity. At the trial the plaintiff himself was offered as a witness. Objection was made to his testifying, on the ground of his disqualification, under section 4816 of Mills' Annotated Statutes, as he is the plaintiff, and also because of his interest in the result of the suit, being a stockholder in the corporation, as appears from the pleadings, for whose use and benefit the suit is brought.

Thereupon and before the court had passed upon the objection, the plaintiff moved, was permitted to, and did dismiss the action as to the defendant Nolon. Thereafter, and at the proper time, plaintiff again made formal offer of proof, by his own testimony, to support and maintain all the material allegations of the complaint. To this offer the original objection was renewed and upheld by the court. The plaintiff made no further offer and, on motion, the jury was instructed to return a verdict for the defendant, upon which verdict a judgment of dismissal was entered. To review that judgment and the ruling of the court in rejecting plaintiff as a witness and in directing a verdict, the case comes here on appeal.

The pleadings show that the plaintiff was the owner of one-third of the entire capital stock of the Shurtloff Company; also that Nolon, the surety on the bond, is likewise a stockholder in the company, also owning one-third of its entire capital stock, and so entitled to share equally with plaintiff in the proceeds of any judgment that might be obtained against the estate of Becker. The genuineness, due execution and delivery of the bond, with all other averments of the complaint, except mere formal matter, were put in issue by the administrator through verified answer.

Upon the record the case must be treated as one against the administrator as the sole defendant, for such was the fact at the time of the formal offer of proof by plaintiff. The question is upon the propriety and correctness of the court's ruling, on the record as it then stood, in rejecting plaintiff as a witness. He was proffered to prove every fact necessary to be shown to establish a right of recovery, including the genuineness, the due execution and delivery of the bond by the administrator's decedent, and as well generally what Becker in his lifetime said and did in reference to the entire transaction.

The section of the statute involved and for consideration in this case is as follows:

Section 4816, Mills': 'That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic or distracted person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending; * * *'

Then follow five specific exceptions, and unless the plaintiff comes within one of them he manifestly is within the inhibition of the statute. This has been held over and over again by our court and by the court of last resort in Illinois, from which latter state this provision was borrowed.

In the case of Whitsett v. Kershow et al., reported in 4 Colo., at page 419, where the plaintiff sued the defendants as heirs at law, we find the first pronouncement of our court upon this statute, in which case, 'against a general objection to his competency as a witness in the case, the complainant testified before the master in his own behalf, in support of all the material allegations in the bill, and the first question presented for our consideration is as to the competency of this testimony.' The court there held, in absence of a showing that plaintiff had brought himself within some one or more of the exceptions covered by the statute, that he was incompetent to testify as a witness in the case.

In the case of Jones v. Henshall, reported in 3 Colo. App., at page 448, 34 P. 254, where Jones, as administrator of an estate, brought suit against the defendants, Henshall and his wife, to recover the sum of $3,000, alleged to be due on a promissory note executed by them in favor, and found among the assets, of the decedent. When the defendant Henshall was offered as a witness in his own behalf, plaintiff, as administrator, objected to his giving testimony because incompetent under this provision, which objection was overruled and Henshall allowed to testify. In reversing that judgment for error in permitting Henshall to testify, the court said:

'It is needless to quote the section or state the exceptional circumstances under which a party may give evidence. In general it may be said that a party is absolutely incompetent to give evidence on any subject when he brings an action against an administrator or defends a suit brought by one. The character of his testimony and the subject-matter about which h

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