Kimball v. Kimball

• Decision Date: 02 November 1867
• Citation: 16 Mich. 211
• Court: Michigan Supreme Court
• Parties: Wm. E. Kimball et al. v. Samuel B. Kimball

16 Mich. 211

Wm. E. Kimball et al. v. Samuel B. Kimball

Supreme Court of Michigan

November 2, 1867

Heard October 23, 1867

Error to Lenawee circuit.

This was an appeal from the allowance by a commissioner of the estate of Daniel Kimball, of certain claims against said estate.

In the circuit court the defendant in error was permitted, under objection, to testify concerning certain dealings between himself and Samuel B. Kimball, in his life time, and to offer certain receipts in evidence.

Judgment was rendered for plaintiff below.

The exceptions to the rulings of the court below are stated in the opinion.

Judgment reversed with costs, and a new trial granted.

A Howell and C. A. Stacy, for plaintiff in error.

A. L Millerd and A. F. Bixby, for defendant in error.

Cooley, J. Christiancy, J., Campbell, J. concurred.

OPINION

Cooley J.:

The first question requiring consideration in this case is, whether the court was right in allowing the claimant, Samuel B. Kimball, to testify on his own behalf to various dealings between himself and the deceased.

The statute provides "That when a suit or proceeding is prosecuted or defended by the representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be permitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person:" Laws 1861, p. 169. The construction put upon this section by the court below seems to be, that it does not prohibit a party from testifying to transactions which were within the knowledge of the deceased, provided his own knowledge in regard to the transaction was superior in degree, or extended to some particulars which the deceased may not have known.

A few extracts from the bill of exceptions will illustrate the view taken by the court below of this statute. A principal portion of the claim in controversy consisted of an account for butcher's meat, and the plaintiff being on the stand, was asked by his counsel: "Are these accounts correct, as far as you know?" Which question being objected to, the court overruled the objection, "on the ground that, unless from the nature of the transaction and circumstances of the case, those matters must have been equally within the knowledge of the deceased, the plaintiff is not precluded by the statute from testifying in relation thereto in his own behalf, and that it was competent to show by the witness whether the matters were equally within the knowledge of the deceased and of the witness." And thereupon the plaintiff testified that the accounts were all correct, as he believed.

Again, under the like objection, the plaintiff testified to a charge against the deceased (who was his father), for the keeping of a horse: "Father came and turned the horse into my pasture. I don't think he knew how long it remained in the pasture. It was about four weeks." Question. Did your father know, as well as you did, what it was worth to pasture the horse? Answer. I don't think he did. Question. What was it worth to keep the horse? Answer. Eight dollars.

Again, the plaintiff, in order to save his account from the operation of the statute of limitations, sought to establish credits in favor of the deceased, and for that purpose was asked: "What is the credit 'By horse to Templeton's mill, two dollars,' given by you to deceased in 1861 for?" Objection being made to this question, the court ruled that the witness could only testify to such matters pertaining to this item as were not equally within the knowledge of the deceased. And thereupon the plaintiff testified that he had his father's horse to go to Templeton's mill; that he was gone one day, and the use of the horse was worth two dollars; that his father did not go with him. The witness, under this ruling, was made the judge of what it was competent for him to testify to, and he seems to have made the most liberal use of his discretionary power.

In like manner, the witness was allowed to testify to other credits in favor of his father, for keeping his (the plaintiff's) horses, on the ground "that the deceased did not know as much about the credit as the plaintiff did." He testified that he thought the deceased knew his (the plaintiff's) horses were kept in the barn of deceased; but did not know how much it was worth, or how long they were there.

These are but samples of the evidence given by the plaintiff, and it is evident that he was permitted to testify to dealings between the deceased and himself, on the sole ground that in some particulars his knowledge was superior. His testimony was not confined to those matters of which the deceased was ignorant, but it covered the whole case, under an assumption of superior knowledge as to time or value. If this is a correct construction of the statute, I do not perceive in it that protection to estates against the knavery and perjury of dishonest claimants which it was designed to afford; for the witness, in order to render his testimony competent, has only to assume that, in some particulars, his knowledge of the transaction is more complete than that of the deceased, and that assumption entitles him to put his account of the transaction before the jury.

I am of opinion that the court erred in its construction of the statute, and that the word "equally," as employed in this section, does not relate to the degree of knowledge possessed by the parties, but is used in the sense of alike, to preclude the party's evidence where the facts to which he is called were known to both. The word equally is often used in this sense, and it can not be employed in any other here, without leading to manifest absurdities.

If the estate was legally liable for any such butcher's bill as was charged against it, the deceased must have had knowledge of its creation. It is not at all probable that he would have remembered all of the items, nor does the plaintiff assume to do so. So far as this record discloses, the superior knowledge which the plaintiff had of the account must have been derived from his books. He has been allowed to give his version of dealings, though the testimony of the opposite party, had he been living, would have covered precisely the same ground, inasmuch as all these dealings, so far as we are informed, were within his personal knowledge. This is not what the statute contemplates. It does not design that one party shall be allowed to give in evidence his version of a transaction within the personal knowledge of both, when death has precluded the other from being heard also.

The effect of the plaintiff's construction is perhaps best seen in the evidence relating to credits. The plaintiff proposes to establish a credit in favor of the estate, by testifying to hiring a horse of deceased to go to Templeton's mill. If he hired the horse for that purpose, his father must have known of it. There is no pretense that the hiring was not fully understood between the parties, but the plaintiff says, his father did not go with him; and in this exclusively consists his superior knowledge of the transaction, unless he assumes to have known best what the use was worth. His father did not know whether he actually went to the mill, or somewhere else. If the addition of an immaterial circumstance like this will entitle a party to testify concerning a transaction within the knowledge of the deceased, it will be easy for the party to testify fully in nearly every case which can be suggested.

I am also of opinion that the witness is not to be the judge for himself of the competency of his evidence in these cases; but the court must decide upon it. There will be many cases where it can not be known, until the testimony is given, whether it was within the knowledge of the deceased or not; but wherever from the nature of the case he must have known about it, the opposite party should not be allowed to put his own account of the whole transaction before the jury, on pretense of giving evidence upon some branch of it of which the deceased had no knowledge. Wherever there is a fact bearing upon the issue which was not within the knowledge of the deceased, and the party testifies to it, his right to give evidence to that fact does not entitle him to extend his testimony to other facts which were within the knowledge of the deceased, and thereby make out a case which the deceased might perhaps have rebutted by his own evidence had he been living.

It may be that, in a case like the present, the plaintiff might be entitled to testify to the value of such articles as he claims to have delivered to the plaintiff, where it does not appear that any price was agreed upon; but this would not warrant him in testifying to facts establishing the sale and delivery, which must be proved by other evidence, since of those facts, where the deceased was purchaser in person, it is to be assumed that each party was fully cognizant.

The New York statute forbids a party being examined against representatives of a deceased person "in respect to any transactions had personally between the deceased person and the witness:" Code, § 399, as amended in 1860. The purpose of this statute was...