Jackson v. Smith

• Decision Date: 06 December 1909
• Parties: ISADORA JACKSON, Respondent, v. TULLEY SMITH, Administrator, Appellant
• Court: Kansas Court of Appeals

123 S.W. 1026

139 Mo.App. 691

ISADORA JACKSON, Respondent, v. TULLEY SMITH, Administrator, Appellant

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from Atchison Circuit Court.--Hon. Wm. C. Ellison, Judge.

AFFIRMED.

Judgment affirmed.

L. J Miles and W. R. Littell for appellant.

(1) Credit for the services rendered in this case, was not originally extended to Abner Smith, whose estate is sought to be charged. This all the evidence clearly shows. Such being the case the alleged promise or contract made by him could not be enforced, because it was oral, and collateral, and clearly within the Statute of Frauds. Rottman v Fox, 25 Mo.App. 572; Bissig v. Britton, 59 Mo 207; R. S. 1899, sec. 3418; Gansey v. Orr, 173 Mo. 543; Hurt v. Ford, 142 Mo. 283. (2) Where one party to a contract is dead, the other party cannot testify, 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is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify. R. S. 1899, sec. 4652; Banking House v. Rood, 132 Mo. 261; Nichols, Shepard & Co. v. Jones, 32 Mo.App. 657; Butts v. Phelps, 79 Mo. 303; Meier v. Thieman, 90 Mo. 442; Leepeer v. McGuire, 57 Mo. 360; Jenkins v. Emmons, 117 Mo.App. 1, and cases cited; Stam v. Smith, 183 Mo. 464, and cases cited. (3) A husband may testify for his wife in a suit, when such suit or proceeding is based upon, grows out of, or is connected with matter of business or business transaction, where the transaction or business was had with, or was conducted by such married man, as the agent of his wife. R. S. 1899, sec. 4656. (4) Under the statute and weight of all the decisions, the law is: That where one party to a contract is dead, neither the surviving party, or her agent, are competent to testify, if the other party has no agent living, who negotiated the contract in issue. The law strives for exact equality, and the exception in the statute, was intended to prevent the injustice that would arise in permitting one party to a contract or cause of action to testify, either by herself or through an agent, when the lips of the other party are sealed in death. R. S. 1899, sec. 4562; Banking House v. Rood, 132 Mo. 261; Miller v. Willson, 126 Mo. 54; Williams v. Edwards, 94 Mo. 452; Leach v. McFadden, 110 Mo. 588; Robertson v. Reed, 38 Mo.App. 32; Orr v. Rode, 101 Mo. 398; Coughlen v. Hauessler, 50 Mo. 128; Angell v. Hester, 64 Mo. 143; Scott v. Burfiend, 116 Mo.App. 75; McMorrow v. Dowell, 116 Mo.App. 289; Stam v. Smith, 183 Mo. 464 and cases cited; Asbury v. Hicklin, 181 Mo. 658; Waltemar v. Schnicks Est., 102 Mo.App. 133; Edwards v. Warner, 84 Mo.App. 200; Curd v. Brown, 148 Mo. 83; Green v. Dilsch, 143 Mo. 1; Brim v. Fleming, 135 Mo. 597. (5) Where the contract is denied, it is not necessary to insist upon the Statute of Frauds as a defense, or bar thereto. The plea of the statute is raised by the denial as well as by the special plea. Hurt v. Ford, 142 Mo. 303. (6) Joseph Jackson, as the husband of the plaintiff, has an interest in the suit, and was disqualified at the common law. Banking House v. Rood, 132 Mo. 259; Nichols, Shepard & Co., v. Jones, 32 Mo.App. 665; Asbury v. Hicklin, 181 Mo. 658. (7) Where a party relies on a disposition, he must, before he can be permitted to use it in evidence, show all the facts upon which its admissibility depends. Paper or documents lacking any essential, statutory requirement, is not a deposition. Grinnan v. Macklen, 29 Mo. 246; Carter v. Davis, 81 Mo. 672-3; R. S. 1899, sec. 2904. (8) Instruction No. 1, on the part of defendant, should have been given as offered by defendant. The law presumes that the services rendered in this class of cases are gratuitous, and this presumption cannot be overcome by inference or presumption. It can only be overcome by proof of an express contract to pay for the services and an intention to charge for them at the time they were rendered. Cowell v. Roberts, 79 Mo. 213.

L. D. Ramsey for respondent.

(1) There was no party to the action claiming under plaintiff and she was not admitted to testify in her own favor. Leahy v. Simpson's Adm'r., 60 Mo.App. 85; Bear v. Pfaff, 44 Mo.App. 39; Stanton v. Ryan, 41 Mo. 515. (2) Husband and wife may testify for the other in cases of agency. (3) Could Joseph Jackson testify to his own agency? Christian v. Smith, 85 Mo.App. 118; Leete v. Bank, 115 Mo. syllabus. (4) Must the court legislate, or follow the statute? Weiermuller v. Scullin, 203 Mo. 474; Stanton v. Ryan, 41 Mo. 515; (5) Corporation and co-partnership governed by another rule. 44 Mo.App. 39; 64 Mo. 447, and all cases therein cited.

OPINION

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 (sec. 4652), 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 has 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., sec. 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 who 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; 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...