Kessler v. Kessler, 3089
| Decision Date | 16 April 1963 |
| Docket Number | No. 3089,3089 |
| Parties | A. R. KESSLER, Olive Kessler, Stanley Y. Kessler, Raymond L. Kessler, Daniel F. Kessler and Alda Kessler Stewart, Appellants (Plaintiffs below), v. Charles W. KESSLER, Roberta Kessler McGowen, and Jordan David Kessler, a Minor, Appellees (Defendants below). |
| Court | Wyoming Supreme Court |
David N. Hitchcock, Laramie, for appellants.
Joseph F. Maier, Torrington, for appellees.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
A. R. and Olive Kessler joined by four of their children sued their son Charles and the widow and minor child of John, deceased, another son. Plaintiffs based their action upon an alleged oral agreement which the parents claimed they had made with John and Charles as partners. Charles admitted the agreement but prayed judgment be given plaintiffs solely against the widow and minor. The widow and minor denied there was any such agreement. Trial being to the court without jury, it found plaintiffs' evidence insufficient to prove there was an agreement and dismissed the action against the widow and minor.
From this judgment plaintiffs appeal claiming the court erred in excluding testimonies of plaintiffs A. R. Kessler, by deposition, and Daniel Kessler, and of defendant Charles, who were the only witnesses offered in behalf of plaintiffs with the exception of the wife of defendant Charles, who disclaimed any knowledge other than hearsay relative to the supposed agreement, and of Roberta who denied there was any such agreement as that asserted by plaintiffs or that she had any knowledge concerning it.
Although appellants attempt to bolster their appeal with argument that the subject matter of the agreement was partnership property of Charles and John; that Roberta was a substituted partner for John; and that the parents had transferred the subject property to Charles and John in reliance upon certain promises they made, the entire core of the appeal rests upon whether plaintiffs proved by substantial evidence there was in fact the claimed agreement. In turn, whether there was any substantial evidence which constituted the necessary proof depended entirely upon the competency as witnesses of A. R. Kessler, Daniel Kessler, and Charles Kessler in the face of objection under § 1-140, W.S.1957, which the court sustained. This leaves the only issue raised by plaintiffs' appeal to be the competency of the three-named Kesslers.
The pertinent portions of § 1-140, supra, are as follows:
'A party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person, except:
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'Nothing in this section contained shall apply to actions for causing death, or actions or proceedings involving the validity of a deed, will or codicil; and when a case is plainly within the reason and spirit of the last three sections, and though not within the strict letter, their principles shall be applied.'
A casual reading of paragraph 5 above, would seem to sanction the admission of the testimonies of the two plaintiffs which were excluded because those testimonies purported to concern transactions with John, had in the presence of Charles, his partner. But if the rule of incompetency is to be applied with reason, in the spirit of the statute, and in accord with the principle that the living should not be permitted to take unfair advantage of either the dead or those taking through such deceased, then the applicability of paragraph 5 depends upon whether the interest and position of the surviving partner are in harmony with the interest and position taken by the widow and minor. The reason for paragraph 5 is the assumption that the voice of the dead partner will be given opportunity to be heard through the lips of the surviving partner. When a surviving partner assumes to speak against and not for the dead, the reason for the exception fails and, hence, such evidence remains inadmissible.
For exactly the same reason Charles himself was an incompetent witness. Although he elected to confess his assent to the agreement contended for by plaintiffs, and thereby admitted his own obligation to plaintiffs, he nevertheless asked that judgment not be rendered against him but that plaintiffs have judgment on their claim solely against the widow and minor. The trial court was correct in ruling Charles was an adverse party to the widow and child, and to hold him incompetent to testify despite the fact he was named as their co-defendant and had been a partner of John. A contrary ruling would be antagonistic to the reason and spirit of the law and would contravene the very principle upon which it was predicated.
The legislature of this State wisely required that, notwithstanding a case is not within the strict letter of the law, when it is plainly within its reason and spirit, its principles shall be applied. If either or all of the plaintiffs, or Charles, had been permitted to testify concerning the alleged agreement, the widow and child would have been left defenseless because the only person who could have disputed such adverse testimony and who could have supported the position taken by them was unable to speak.
Furthermore, the opinion in State Bank of Wheatland v. Bagley Bros., 44 Wyo. 244, 11 P.2d 572, commits this court and requires exclusion of Charles' testimony. At 11 P.2d 587, after noting the surviving partner and co-defendant had admitted all claims made by plaintiff, the court said, 'Undoubtedly, his interest really lay with the plaintiff's side of the issues as made up and against that of the other defendants.'
The parallel here is that Charles' answer also admitted plaintiffs' claims. Therefore Charles' interest likewise lay with plaintiffs in this case. This made him a witness adverse to the widow and her son who denied the agreement.
In the Bagley case it was insisted no preliminary examination of the surviving partner was had to show he was an adverse party. The court said none was needed and that the record as already made by pleadings established that fact. Similarly, by answer of the surviving partner, Charles, it was established he was an adverse party to the widow and minor. In line with the Bagley decision it is concluded that, although the surviving partner Charles was a co-defendant with the widow and her son, that fact cannot and does not control the question of whether he was an adverse party to them. It is impressive that the Bagley opinion indicates unequivocally that in the view generally taken by courts relative to statutes such as ours, it is a well recognized rule that the real interest of the parties, rather than their position as plaintiff or defendant, controls the question of whether parties are opposite within the meaning of incompetency statutes and that their status depends upon the relation they sustain to each other regarding the particular issue in controversy. We, therefore, hold that Charles was an adverse party to Roberta and the minor child and as such was incompetent to testify.
In kind, appellant tried to have both Charles and Daniel lay foundation for admission of an exhibit consisting of a copy of a memorandum of the disputed agreement purportedly prepared by Charles, but the court also sustained objection to that testimony. The correctness of this ruling is sanctioned by what this court said in Stephens v. Short, 41 Wyo. 324, 285 P. 797, 798-799, where it was pointed out that the word 'transaction' as used in § 5807, W.C.S.1920, now § 1-140, W.S.1957, is a very broad term and has been held to embrace:
'* * * 'every variety of affairs which can form the subject of negotiations, interviews, or actions between two persons, and includes every method by which one person can derive impressions or information from the conduct, condition, or language of another.' * * *'
Therefore, any testimony by either Charles or Daniel concerning the memorandum, was clearly within the prohibition of the statute.
Stephens v. Short, 285 P. at 801 and 803, also sets up guideposts for application of § 1-140, W.S.1957, to the very circumstance with which we now deal, saying:
'* * * When the policy and spirit of the law are regarded, we are unable to perceive that the fact that the contract was in form several, as well as joint, injected any other element into the situation which should properly lead to a different conclusion.'
'In the light of these authorities, and with the emphatic and positive command of the concluding words of section 5807, supra, before us, [§ 1-140, W.S.1957] 'and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied,' we are constrained to conclude in the case before us that plaintiff's testimony concerning the accident was wholly inadmissible against either defendant, and that there was error in the trial court's ruling to the contrary. * * *'
While this last statement was made with reference to the exclusion of a plaintiff's testimony, it is equally applicable to testimony from Charles whose position in the lawsuit unquestionably made him a party adverse to the position of Roberta and her son.
The plain and unmistakable purpose of § 1-140, supra, is to exclude all adverse testimony which a party to an action might for any reason be tempted...
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