Jackson v. Smith

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1026
• Parties: JACKSON v. SMITH.
• Court: Missouri Court of Appeals

123 S.W. 1026

JACKSON v. SMITH.

Kansas City Court of Appeals. Missouri.

December 6, 1909.

Rehearing Denied January 10, 1910.

1. COURTS (§ 91) — RULE OF DECISION — SUPREME COURT.

The construction given a statute by the Supreme Court must control its construction by the Court of Appeals.

2. WITNESSES (§ 141) — COMPETENCY.

Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that no person shall be disqualified as a witness by interest in a suit, as a party or otherwise, provided that in actions where one of the original parties to the contract in issue is dead the other party cannot testify in his own favor, and where an administrator is a party, the other party cannot testify in his own favor, unless the contract was made with a person living and competent to testify, does not affect the competency of a witness competent at common law; and, since at common law an agent could testify as to a contract made for his principal, in an action against the administrator upon a contract made with decedent by plaintiff's agent, the agent was competent to testify as to the terms of the contract.

3. WITNESSES (§ 116) — COMPETENCY — DISQUALIFICATION — INTEREST.

The statute wholly abolishes interest as a disqualification of a witness, and such disqualification is not restored by the proviso.

4. WITNESSES (§ 171) — COMPETENCY — SURVIVING PARTY TO CONTRACT.

The surviving party to a contract can be compelled to testify against himself as to the terms thereof, in an action thereon by the representative of the other party.

5. WITNESSES (§ 144) — COMPETENCY — SURVIVING PARTY TO CONTRACT — "OTHER PARTY."

Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that in actions where one of the original parties to the contract in issue and on trial is dead the other party to such contract cannot testify in his own favor, means by the "other party" one who is a party to the suit, as well as to the contract.

6. WITNESSES (§ 56) — COMPETENCY — PERSONS DISQUALIFIED — HUSBAND.

By the direct provisions of Rev. St. 1899, § 4656 (Ann. St. 1906, p. 2536), a married man is not disqualified as a witness, in an action in the name of his wife based upon any transaction by him as his wife's agent.

Appeal from Circuit Court, Atchison County; W. C. Ellison, Judge.

Action by Isadora Jackson against Tulley Smith, Administrator. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 118 S. W. 659.

L. J. Miles and W. R. Littell, for appellant. L. D. Ramsay, for respondent.

ELLISON, J.

This action is founded upon an alleged promise of Abner Smith to pay plaintiff, who was his daughter, for services rendered in caring for another daughter. Abner Smith died, and defendant was appointed administrator of his estate. The judgment in the trial court was for the plaintiff.

The contract with the deceased, Smith, whereby he promised to pay plaintiff, was made, on plaintiff's part, with her husband, as her agent, and he was permitted to testify; the defendant objecting to his competency for the reason that the other party was dead. The court held him to be a competent witness, and overruled the objection, and the propriety of that ruling is the point in the case. There are some decisions, and yet a greater number of expressions made by the courts in the course of opinions, which sustain defendant's objection. But the cases of Clark v. Thias, 173 Mo. 628, 73 S. W. 616; Stanton v. Ryan, 41 Mo. 510; Baer v. Pfaff, 44 Mo. App. 35; Leahy v. Simpson, 60 Mo. App. 83 — support the ruling of the trial court. The case involves the construction of our statute as to witnesses (section 4652 [Ann. St. 1906, p. 2520]), which reads as follows: "No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, * * * provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, * * * the other party to such contract or cause of action shall not be admitted to testify either in his own favor * * * and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. * * *" An administrator being a party in this case, if the contract had been made with an agent of the deceased, the evidence of the other party would have been admissible under the specific terms of the statute. But having been made by an agent of the other party with the deceased himself, that particular part of the proviso does not apply. We must therefore determine the question from a consideration of other portions of the section that we have set out. In considering cases from this state we will confine ourselves mostly to those arising in the Supreme Court, since the construction given by that court must control.

Prior to the statute the common-law rule prevailed, which disqualified a witness whose legal interest was involved. The statute relieved that disqualification. The statute does not interfere with the competency of a witness who was competent at common law. So, in cases of this nature, whenever the witness is found to be such as that he would have been a competent witness at common law, he still is competent under the statute, for the reason that that enactment does not affect his status. The statute was only interposed in instances of an incompetent witness at common law by making him competent, unless the other party is dead, in which case the survivor is generally not permitted to testify, but he is still competent, under the first clause of the statute, for some purposes. Kirton v. Bull, 168 Mo. 622, 68 S. W. 927; Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088. Now an agent making a contract for his principal was a competent witness at common law. 1 Greenleaf on Ev. § 416; 1 Starkie on Ev. 121. He was permitted to testify by that law by way of an exception to the rule. In the case at bar the husband, whom the circuit court permitted to testify, was an agent, and was therefore properly admitted to testify. The statute, as has been many times repeated by the Supreme Court, is an enabling, and not a disabling, statute. Weiermueller v. Scullin, supra. So if we, by construction, should exclude the evidence of an agent, a competent witness under the common law, we would make of it a disabling statute, and would find ourselves out of harmony with all those decisions.

But it is said that the object of the proviso in the statute was to put the parties on terms of equality, and that where death had prevented one from testifying, the statute would prevent the survivor. And to maintain such equality the courts have been led to say that, if the contract was made by an agent of the survivor, such agent could not testify, since it would give the surviving litigant an advantage. But it must be remembered that the deceased's side of the controversy also has an advantage not possessed by the survivor, in that the latter can be forced to testify against himself, while the deceased, of course, cannot. Ess v. Griffith, 139 Mo. 322, 40 S. W. 930; Estate of Soulard, 141 Mo. 642, 43 S. W. 617; Borgess v. Vette, 142 Mo. 560, 44 S. W. 754, 64 Am. St. Rep. 567; Rice v. Waddill, 168 Mo. 99, 67 S. W. 605. This, as practitioners know, is sometimes a very material and valuable advantage. We must assume that the Legislature in determining upon this important policy of judicial procedure was aware of these respective advantages, and thought they were merely adventitious, and so framed the statute that they would balance, as near as may be, and thus practically, in general results, the nearest approach to equality would be attained.

Again, defendant attacks the ruling of which he complains on the mere score of authority. He insists that the rule announced in Clark v. Thias, supra, is contrary to Stanton v. Ryan, supra, Williams v. Edwards, 94 Mo. 447, 7 S. W. 429, and the later case of Asbury v. Hicklin, 181 Mo. 658, 81 S. W. 390, and should not be followed. It, however, will be observed, by reference to page 672 of 181 Mo., at page 390 of 81 S. W., of the report of Asbury v. Hicklin, that the point there was merely suggested, and was not decided. And if we go back to Stanton v. Ryan and Williams v. Edwards, we find that in the former one party was a partnership, and the member who made the contract for the firm died, and it was held, on one branch of the case, that the other party could not testify. But it will be borne in mind that there is no division of entity between the partner and the partnership; he is a component portion of every part of it, and the death of a member is the death or dissolution of the partnership itself. It is true that if a member of a partnership should die who did not make the contract, it would not disqualify the opposite party; but that would result from a lack of any reason for disqualification. And in the case of Williams v. Edwards we find that one party was held to be disqualified on account of the death of the agent of the other party chiefly on the ground that such other party was a corporation, only capable of acting through agents, and that the agent was pro hac vice the corporation itself, and his death was, in respect to the matter considered, tantamount to the death of the corporation; and so the same may be said of the opinion of Hall, J., in Nichols, Shepard & Co. v. Jones, 32 Mo. App. 657.

As already intimated, there are a number of cases with which Clark v. Thias is not in harmony. We need not discuss them, but from what we have here written it will be seen that we regard the rule stated by Judge Fox, writing the opinion in that case, as being the most consistent and reasonable ...