Eunice Y. Comstock's Adm'r v. Abe Jacobs

• Decision Date: 15 May 1915
• Parties: EUNICE Y. COMSTOCK'S ADM'R v. ABE JACOBS
• Court: Vermont Supreme Court

94 A. 497

89 Vt. 133

EUNICE Y. COMSTOCK'S ADM'R v. ABE JACOBS

Supreme Court of Vermont

May 15, 1915

February Term, 1915.

GENERAL ASSUMPSIT. Plea, the general issue. Trial by jury at the June Term, 1914, Orange County, Fish, J., presiding. Verdict and judgment for defendant. The plaintiff excepted. This case has been twice before in the Supreme Court; see 84 Vt. 277, and 86 Vt. 182.

Judgment affirmed.

John W. Gordon, Earl R. Davis and W. H. Sprague for the plaintiff.

David S. Conant, Frank S. Williams, R. N. Harvey and Stanley C. Wilson for the defendant.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION

TAYLOR

This is the third time this case has been here. The first opinion. Comstock's Admr. v. Jacobs, 84 Vt. 277 78 A. 1017, Ann. Cas. 1913A, 679, contains a full statement of the facts which were not materially different on the last trial below, and so need not be repeated. For the report of the second hearing of the case see Comstock's Admr. v. Jacobs, 86 Vt. 182, 84 A. 568.

1. Defendant was a witness in his own behalf and, against the objection that he was incompetent to testify to the contract as the other party thereto was dead, was permitted to testify that he made a contract with the Comstocks for their life support for which he was to have all their property. Plaintiff had introduced no living witness to such a contract and his rebuttal evidence tended to show that no such contract was ever made. Plaintiff had not called defendant as a witness at this trial. When the case was first here it appeared that the plaintiff, in his opening case, called the defendant as a witness and examined him at length relative to the contract made by him with the Comstocks under which he received all their property, and also as to the amount of money and property received by him from plaintiff's intestate in her lifetime. On the facts certified by the judge who presided at the trial, this Court then held that the plaintiff, by calling the defendant as a witness and examining him as he did, waived the statutory incompetency and made him competent as a general witness in the case. Comstock's Admr. v. Jacobs, 84 Vt. 277, 78 A. 1017, Ann. Cas. 1913A, 679. It is now claimed that when plaintiff called the defendant as a witness at the first trial he only inquired of him concerning Mrs. Comstock's bank book, and the judge presiding at the last trial states in the bill of exceptions now before us that it appeared that at a previous trial the defendant had been used as a witness by both parties, but the plaintiff had only used him as a witness concerning the bank book of Eunice Y. Comstock.

No question is made but that the record when the case was first here showed as stated in that opinion. The decision on the facts then certified up settled the competency of the defendant as a witness in his own behalf and became the law of the case to the extent of fixing his status as a witness in the subsequent trials. Cowles v. Cowles' Est., 81 Vt. 498, 71 A. 191. The waiver of defendant's incompetency as a witness having thus been established, it could not be impeached at a subsequent trial without falsifying the record of the former trial. That record must stand as no steps were taken to have it corrected on a rehearing. But the exception could not be sustained if the question were an open one. It is generally held that when an executor or administrator, suing or defending on behalf of a decedent's estate, calls the adverse party and examines him in regard to transactions with the decedent, he thereby waives the statutory incompetency of the witness and makes him competent as a general witness in the case. Note to Comstock's Admr. v. Jacobs, Ann. Cas. 1913A, 682 and cases cited; Paine v. McDowell et al., 71 Vt. 28, 41 A. 1042; Ainsworth v. Stone, 73 Vt. 101, 50 A. 805; Dee v. King, 77 Vt. 230, 59 A. 839, 68 L.R.A. 860; Cowles v. Cowles' Est., 81 Vt. 498, 71 A. 191; Green's Admr. v. Mason et al., 84 Vt. 289, 79 A. 48; Linsley v. Lovely, 26 Vt. 123.

The bank book, concerning which plaintiff examined the defendant, was the principal subject-matter of the controversy. The time of the transaction to which this testimony related is not stated; but it must have been during Mrs. Comstock's lifetime, as the bank book had been transferred to the defendant and the deposit collected by him several months before her death. By calling the defendant and examining him as to this matter plaintiff waived the benefit of the statute and the defendant became a competent witness in his own behalf on all relevant matters. The justice of this rule is too apparent to require extended argument. It would be most unjust to require the defendant to admit having received the bank book and its proceeds and deny him the opportunity to explain how he came by them. Upon the defendant's theory of the case the transfer of the bank book was one of several facts making up a whole transaction. Having called the defendant as a witness to one of the constituent facts, plaintiff could not object, on any just ground, to his testifying to the whole. To sustain his objection would be to countenance his occupying inconsistent positions. For the protection of the estate which the plaintiff represents, the statute denied the defendant the right to testify in his own behalf. The plaintiff was at liberty to insist upon or waive the benefit of the statute as seemed to him best for the interests of the estate. He could keep the door shut, if he chose to do so; but he could not open it, so far or so long as suited his own purposes, and then close it. Once open it remains open until the end of the litigation.

It may be that plaintiff could have called the defendant as a witness to some fact without waiving his incompetency to testify generally; as to testify to some matter arising since his appointment as administrator. (Merchants' Loan & Trust Co. v. Egan, 222 Ill. 494, 78 N.E. 800), or in case of necessity to identify letters or other documentary evidence preparatory to offering them in evidence, (Garrus et al. v. Davis et al., 234 Ill. 326, 84 N.E. 924; Stevens et al. v. Moulton, 68 N.H. 254, 38 A. 732). But these and similar cases are to be regarded as exceptions to the general rule that by using a disqualified witness a party waives the right to object to his competency later.

Plaintiff contends that our decisions on this question have all proceeded on the ground that the party calling the witness has examined him generally on the question in issue. This is a misinterpretation of our holdings. While such was the situation in some cases, and so there was no occasion in the particular case to go further than that, we have no decision holding that, in order to waive the disqualification, it is necessary that the examination of the witness relate to the contract in issue. In some of the cases the rule we now announce was unmistakably forecasted.

Plaintiff also argues at some length that Linsley v. Lovely, supra, does not bear upon the present question; that, as it relates to waiver of incompetency on account of interest, it is not an authority for our decisions based upon it where the question was waiver of incompetency due to the death of the other party. The force of Linsley v. Lovely as an authority becomes apparent when we consider the successive steps by which the law applicable to the case has developed. At common law no person interested in a cause could be admitted to testify in favor of that interest. Carr v. Cornell, 4 Vt. 116. Prior to 1852 a party situated like the defendant was denied the right to testify not because the other party to the transaction was dead but because of interest. By No. 13, Acts of 1852, all objection arising from interest, whether as party or otherwise, was removed ( Smith v. Potter, 27 Vt. 304, 65 Am. Dec. 198) and a party was given the right to compel the adverse party to testify in his behalf.

Linsley v. Lovely arose before the Act of 1852. The Court then held that a party who called a witness who was disqualified because of interest and examined him upon a question to the court touching the interest of another witness could not object to his being examined by the other party upon the merits of the cause to the jury. It was said that by so doing the party calling him waived the right to object to his competency. So long as the Statute of 1852 remained in force unamended the fact that one of the parties to a transaction was dead did not affect the right of the living party to testify. To guard estates of deceased persons from the apprehended danger of allowing the survivor when the other party was disabled by death to meet and explain such testimony, the Legislature saw fit to restrict the effect of the Statute of 1852 by engrafting thereon provisos relating to such cases. Fitzsimmons v. Southwick, 38 Vt. 509. These provisos first appeared in the revision of 1863 (G. S. Ch. 36, § 24) and covered what is now P. S. 1589 to 1591. An exception was thus carved out of the old disqualification of interest, and, within a limited scope, the discarded rule was restored. See 1 Wig. on Ev. § 578. The main object of the statute was to remove and not to create disqualifications; and the provisos operate as a limitation or exception, so that competency is the rule and incompetency the exception. See Hopkins Tr. v. Sargent's Est., 88 Vt. 217, 92 A. 14; Lytle v. Bond's Est., 40 Vt. 618. Within their scope the provisos restore the disqualification that existed at common law. Thus it is seen that Linsley v. Lovely is full authority for the several decisions in support of which it is cited.

Plaintiff attempts to distinguish this from our cases holding a waiver but the case is not distinguishable. Cases cited from other jurisdictions do...