Howard v. Patrick

• Court: Michigan Supreme Court
• Writing for the Court: CAMPBELL, J.
• Citation: Howard v. Patrick, 43 Mich. 121, 5 N. W. 84 (Mich. 1880)
• Decision Date: 07 April 1880
• Parties: HOWARD, Administrator, v. PATRICK, Administrator.

5 N.W. 84

43 Mich. 121

HOWARD, Administrator, v. PATRICK, Administrator.

Supreme Court of Michigan

April 7, 1880

Various rulings of the court in this case considered. Judgment reversed and new trial granted.

Error to Wayne.

Levi Bishop, for plaintiff in error.

C.I Walker, for defendant in error.

CAMPBELL J.

Plaintiff in error presented a claim against the estate of John W Pardee, on behalf of the estate of Joseph Pardee, who was father of John, and whose personal estate she claimed John had converted after the father's death. The claim was for the value of the property alleged to have been converted. Joseph Pardee died November 21, 1859, leaving three sons and several daughters, of whom plaintiff is one. There are also some descendants, named Conklin, by a former marriage. John Pardee died October 19 1872. Joseph Pardee also left a widow, who continued to live on the homestead. Plaintiff obtained letters of administration on January 5, 1875. There had been no previous appointment. The case, having been appealed to the Wayne circuit court, has been tried four times. It was before us in 18'78 where several matters were settled by the decision, which is reported as Howard v. Patrick, 38 Mich. 795. The chief controversy--and substantially the only one in the court below, except as to some household furniture--was whether John Pardee was in partnership with his father, and therefore entitled to the personal property of the firm as survivor. This came up in different ways, and most of the questions upon the record are more or less connected with it. Among other things relied on to prove the partnership was an account book claimed to have been chiefly kept by John, with his father's concurrence, which had a tendency to show such dealings. Some dispute arose concerning the genuineness and purpose of this book. There was also testimony to show what amount of live stock was possessed and owned at the death of Joseph Pardee.

Two inquiries on this latter point were ruled out. The first was to show how many cattle had been kept before a certain shed was built, which had been put up in Joseph's life-time, and the second was as to how the cattle had been cared for the winter before and the winter after his death. No objection was made to inquiry confined to the winter of his death. We do not think such evidence was material, or tended to explain any of the facts in issue. The court below refused to allow plaintiff to testify concerning several distinct inquiries, on the ground that her testimony would relate to matters which were to be excluded as equally within the knowledge of herself and John Pardee. We held on the former argument that she came within the statute so far as any such questions of exclusion existed. The views of the court have been recently given further in Downey v. Andrus, 43 Mich.--and we do not think it necessary to discuss the general doctrine. In order to authorize the exclusion of such testimony it must--being an exception to the general rules of competency--be brought fairly within the statute. It seems to us that enough does not appear as to some of the inquiries to indicate that plaintiff's knowledge was necessarily so obtained as to be privileged, and that the rulings and objections were too broad. Jones v. Beeson, 36 Mich. 214. The proper ruling would have been, in all ambiguous cases, to restrict the examination to such matters as were not within the exclusion. In some cases the question itself was enough to show this. But in some it was not. The inducements offered by Joseph to John to induce him to remain at home might or might not have been learned from John only. The manner of John doing work, whether under his father's direction or not, might also appear from circumstances and in various ways, involving no exclusive knowledge or communications. The circumstances attending the account book were testified by some witnesses to have been family talk and open. Looking into the record, upon the testimony drawn out on these matters, it does not appear that it was impossible for plaintiff to have knowledge on them derived in such a way as not to be objectionable.

Upon the former hearing we held that evidence of the admissions and statements of plaintiff and her sisters that they were to receive only a certain amount from their father's estate, and of settlements on that basis, was outside of the merits of this controversy, and not good foundation for impeachment. It was used on the former trial, not only for impeachment, but as evidence on the merits, and it seems to have been thought by counsel for defendant that the ruling only covered the use of it on the merits. We held the evidence in contradiction should be rejected altogether, as on a collateral issue. The evidence offered in the present case, that plaintiff said she had no claim against John Pardee's estate, was certainly foreign to this issue, as she was not then administratrix, and it is not now important whether she had or had not any claims of her own. The present controversy relates to John's liability to his father's estate, and to nothing else; and whether plaintiff has, or has not, any private interests left in her father's estate, can have no bearing on the question whether John or his father owned the property in dispute.

Those questions which related directly to the disposal by Joseph to his sons of his property during his life, did bear upon the issue, and that testimony was proper for impeachment. That was the very issue to be tried. It may be that some of the other inquiries bear very nearly on the same questions, but impeaching testimony is governed by strict rules as to relevancy, and ought not to be received unless clearly...