Hutchinson v. Gaston

• Decision Date: 03 April 1922
• Docket Number: 22118
• Citation: 128 Miss. 487,91 So. 193
• Court: Mississippi Supreme Court
• Parties: HUTCHINSON v. GASTON

91 So. 193

128 Miss. 487

HUTCHINSON v. GASTON

No. 22118

Supreme Court of Mississippi

April 3, 1922

APPEAL from circuit court of Lowndes county, HON. T. B. CARROLL Judge.

1 WITNESSES. Witness cannot testify to establish his own claim originating during decedent's life, against decedent's estate.

A witness cannot testify to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, although the deceased person was not himself conversant with the facts out of which the claim arose, the transaction having been attended to for him by an agent who is still living. Section 1917, Code 1906 (Hemingway's Code, section 1577).

2. FRAUDS, STATUTE OF. Landlord's request to dealer in mules regarding sale to a negro held to show intended credit was to landlord so that contract was not within statute.

The only inference to be drawn from a request made by a landlord to a dealer in mules "that she would have a nigger down there and he would want a mule and to do the best I could for him, of course, she would have the difference to pay," is that the landlord intended for the credit for the difference in the value of the mules to be extended direct to her; consequently, the contract is not within the statute of frauds and is valid, though not in writing.

3. APPEAL AND ERROR. Verdict on conflicting evidence not disturbed.

A verdict should not be directed where the evidence is in conflict.

HON. T B. CARROLL, Judge.

APPEAL from circuit court of Lowndes county, HON. T. B. CARROLL, Judge.

Suit by Ira L. Gaston, administrator of the estate of Ira T. Gaston, deceased, against Mrs. E. N. Hutchinson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 89 So. 921.

Reversed and remanded.

John I. Frierson, for appellant.

Inasmuch as the defendant anticipated that objection would be made to her testifying, on the ground that she would be testifying to establish her defense against the estate of a deceased person, the defendant interposed an objection when Egger, the agent of the deceased, was placed on the stand to testify, and in that objection she set out as a reason that the law had closed her mouth to contradict the witness introduced and therefore she thought that the mouth of the witness himself should be closed from testifying.

This section 1917 of the Code of 1906, has been before the supreme court many times. It is thoroughly and completely reviewed on most of the points in the statute in the case of Whitehead v. Kirk, 61 So. 737, 62 So. 432, but the case more nearly analogous to the case at bar is that of McCaughan v. Hardy, 29 So. 397, 78 Miss. 598.

The opinion in the McCaughan case was rendered by Judge CALHOUN. It is very short and suggests that though Judge CALHOUN thought the law to be one way he thought that justice and right were the other. It reads as follows: "We cannot hold that there was error in suppressing the deposition. If it were an original proposition we might or might not do so, but we feel bound by the cases of Duncan v. Gerdine, 59 Miss. 550, and Wetherby v. Roots, 72 Miss. 355, 16 So. 902. We cannot reverse the chancellor on the facts. Affirmed."

The case of Duncan v. Gerdine, referred to above is not analogous to the McCaughan case and we think that the supreme court failed to draw the distinction. The Duncan case had been before the supreme court on two previous occasions; 57 Miss. 820, and 58 Miss. 390, and a judgment had against Mrs. Duncan. Mrs. Duncan filed a bill assailing the judgment under the Married Woman's Law and when that position was lost (Duncan v. Robertson, 58 Miss. 390), she obtained leave to file an amended bill, which alleged that the lower court had no jurisdiction because summons was never served upon her and the injunction against the judgment was reinstated. After B. F. Robertson answered the amended bill and denied the averment of want of summons, he died and the case was revived against the appellees, who, at the final hearing, on the evidence in the opinion, obtained a decree dissolving the injunction and dismissing the bill. The question was raised as to the competency of Mrs. Duncan as a witness. On the point the court said (59 Miss. 556): "The controversy is between her and the representative of a deceased person; its purpose is to free her from a liability to the estate existing in the lifetime of the deceased. The chancellor, however, in the opinion delivered by him in overruling objections to her competency, states that, though she is prohibited by the letter of the statute from testifying, she is not forbidden by the spirit of the statute, because the facts testified to by her were not in relation to any communication with the deceased or touching any matter of which he had personal knowledge and therefore, as he would not have contradicted her if alive, she is a competent witness. We do not concur in this view. The law declares that no person shall testify as a witness to establish his own claim to any amount for or against the estate of a deceased person, which originated during the lifetime of the deceased. There is no limitation or qualification of the prohibition."

The opinion goes on to say: "R. W. Miller, the deputy sheriff, was incompetent to give testimony contradicting the return made by him on the writ;" citing Stone v. Montgomery, 35 Miss. 83. Therefore in the Duncan case, the distinction from the case at bar is that R. W. Miller, the deputy sheriff, was not permitted to testify, and in the McCaughan case W. H. Hardy was permitted to testify. The law presumed that the return of the sheriff was regular. If the validity of the return had been established by the oral testimony of the deputy sheriff instead of his written return, the case would have been analogous to the McCaughan case and to the case at bar.

Therefore in the Duncan case, the distinction from the case at bar is that R. W. Miller, the deputy sheriff, was not permitted to testify, and in the McCaughan case, W. H. Hardy was permitted to testify. The law presumed that the return of the sheriff was regular. If the validity of the return had been established by the oral testimony of the deputy sheriff instead of his written return, the case would have been analogous to the McCaughan case and to the case at bar.

In the Wetherby case, 72 Miss. 255, 16 So. 902, action was brought by Logan H. Roots v. H. E. Wetherby, on a note executed by Wetherby. Plaintiff died pending suit and the administrator was substituted as plaintiff. Judgment for plaintiff and defendant appealed. Affirmed.

In the Duncan case the court differentiated it from the case of Strickland v. Hudson, 55 Miss. 235. In the Strickland case the plaintiff in error had had two new trials. Mrs. Hudson testified, and died between the trials. Her evidence was preserved from a former trial and introduced, after her death at a retrial. When Strickland was introduced to testify as to matters covered by her testimony, his testimony was excluded. The court said: "Strickland should have been permitted to testify to the matters covered by her evidence. His exclusion was within the letter but not the spirit and intent of the statute, on the subject of parties testifying." Quin haeret in litera, haeret in contice. Mumm, Admr. v. Owens, 2 Dill (U.S.) 475 (Fed. Cas. No. 9919); Monroe v. Napier et al. 52 Ga. 385; Jacks et al. v. Bridwell et ux, 51 Miss. 881.

It would be most unjust to permit the testimony of one of the parties to a transaction to go to the jury and exclude that of the other, and such a result not within the contemplation of the law. The principle is that the living party shall not be heard to give his version of a transaction about which death has sealed the lips of the other; but when testimony of the deceased party is made available in the controversy, it would shock justice to deny the right of the living party, to be heard as to the matters covered by that testimony.

We respectfully submit that the testimony of Mrs. Hudson was no more available in the Strickland case than the testimony of Ira T. Gaston, the deceased, was available through his agent Egger, in the case at bar.

In all the cases in the books that have been before the supreme court on that statute, except the McCaughan case, the court cites and recited the principle on which the statute is based. In the Duncan case, 59 Miss. 557, the court says: "But it is the fact that the controversy is between the living and the dead; and the silence which death has imposed on one, the law imposes on the other; absolute equality is sought by the statute, and beyond this we did not go in the case cited." (Strickland case.)

In Jacks v. Bridwell, 51 Miss. 881, 889, the court says: "The object is to prevent the assertion of rights to what a deceased person left, by virtue of some act of such deceased person, from being supported by the testimony of him who asserts the right." We submit that both parties to the transaction in the case at bar were alive, Mrs. Hutchinson and Eugene Egger. They were the parties to the transaction. Or, it would be better to say, both parties were physically alive, and one was allowed to testify.

The primary purpose, the righteous purpose, the just and reasonable purpose of the testimony of Mrs. Hutchinson was to contradict the testimony of Egger. They were the two parties to the transaction. She and deceased might or might not have been parties to the transaction. The deceased knew nothing whatever about the transaction. Similar circumstances and conditions prevail in the McCaughan case.

Plea of the statute of fraud. The third assignment of error is "The court erred in refusing to give a peremptory instruction for the defendant." ...