Duggar v. Pitts

• Decision Date: 14 November 1905
• Citation: 39 So. 905,145 Ala. 358
• Parties: DUGGAR v. PITTS.
• Court: Alabama Supreme Court

39 So. 905

145 Ala. 358

DUGGAR v. PITTS.

Supreme Court of Alabama

November 14, 1905

Appeal from Circuit Court, Marengo County; J. T. Lackland, Judge.

"To be officially reported."

Action by W. McLean Pitts against R. H. Duggar, as executor of the will of W. W. Duggar, deceased, for professional services rendered the decedent in his lifetime. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Rehearing denied January 9, 1906.

The plaintiff was introduced as a witness in his own behalf and asked a number of questions, all of which related to the number of visits he paid Duggar while sick, or to the work he did for Duggar, medicines furnished him, or operations performed, and whether said operations were disagreeable, and as to original entries on his books of visits made said Duggar. These questions were all objected to, because they called for evidence of a transaction between witness and said W. W. Duggar, a deceased person; witness having a pecuniary interest in the result of the suit. These objections were all overruled by the court, and the witness permitted to testify concerning these matters.

E. J Gilder, for appellant.

Arthur M. Pitts, for appellee.

ANDERSON J.

Section 1794 of the Code of 1896 was intended to remove the ban of incompetency placed by the common law against parties of interest as witnesses, "except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with or statement by the deceased person whose estate is interested in the result or proceeding." "The policy of the exception is the exclusion of parties in interest from testifying to transactions with or statements by a deceased person, when the purpose of the evidence is to diminish the rights of the deceased or those claiming in succession to him. * * * If death has sealed the lips of one party, the law intends, as to this species of evidence, to seal the lips of the living." Boykin v. Smith, 65 Ala. 294. Justice Brickell, in discussing the exception in the case of Louis v. Easton, 50 Ala. 470, said: "The exception must embrace every case in which it is sought to fasten on an estate a liability by the testimony of the party with whom that testimony is created." Can it be doubted for a moment that the testimony of the plaintiff, Dr. Pitts, as to the number of visits he made deceased and what he did to relieve him, did not tend to fasten a liability upon the estate of the deceased and to diminish the same, in view of the fact that the testimony of other witnesses as to the value of plaintiff's services is hypothesized upon the number of visits and character of the treatment? We think not.

The Texas Court of Civil Appeals, in discussing a statute similar to ours in the case of Garwood v. Schlichenmaier, 25 Tex.Civ.App. 176, 60 S.W. 573, says: "We think the following portion of the testimony quoted was, under article 2302, Sayles' Ann. Civ. St. 1897, inadmissible: 'I treated him for said disease from February 22 to April 25 1899. I treated him nearly every day during said period sometimes every two or three days. I wrote prescriptions for him frequently, and gave him medicine in my office.' We cannot agree with appellee in his contention that this testimony is not 'as to any transaction with the intestate within the meaning of the statute referred to.' Webster defines 'transaction' as follows: '(1) The doing or performing of any business; management of any affairs; performance. (2) That which is done; an affair; as the transaction of the exchange.' It is defined in Anderson's Dictionary of Law to be 'whatever may be done by one person which affects another's rights, and out of which a cause of action may arise.' The doing or performing of the business shown by the testimony quoted was by Garwood with the deceased, and was clearly such transaction as the witness was inhibited from testifying to under the statute, under which it has been held a physician was incompetent to prove his own services as such to the deceased against the representative. Abbott's Trial Ev. (2d Ed.) 23. If, however, the performance of the services had been proved aliunde, when so proved, it seems, plaintiff could have testified as to the value. Morrisette v. Wood (Ala.) 26 So. 307, 82 Am. St. Rep. 127."

The Supreme Court of New York, in the case of Ross v. Ross, 6 Hun, 182, which has been approvingly cited several times by said court, in passing upon the evidence of the plaintiff who was a physician, and son of the deceased, and who...