Muskogee Elec. Traction Co. v. McIntire
| Decision Date | 05 April 1913 |
| Citation | 133 P. 213,37 Okla. 684,1913 OK 232 |
| Parties | MUSKOGEE ELECTRIC TRACTION CO. v. MCINTIRE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 20, 1913.
Syllabus by the Court.
Comp Laws 1909, § 5842, provides that husband and wife are incompetent to testify for or against each other, except concerning transactions in which one has acted as agent of the other. Held that, where plaintiff, a married woman, on being injured in a street car accident, directed her husband to search for a negro passenger who was also on the derailed car, the fact that the husband was plaintiff's agent for that purpose did not render him competent to testify, in his wife's behalf, to a conversation between himself and the negro for the purpose of impeaching the latter.
The incompetency of a husband to testify as a witness for his wife in an action to which she is a party, under section 5842, Comp. Laws 1909, must be raised in the trial court by an objection to the competency of the witness, and not merely an objection to the competency, relevancy, or materiality of the evidence offered by the witness.
It is the objection made, and not that which might have been urged that called for the ruling of the court. Had proper objection been made, it must be presumed that the objection would have been sustained, hence no error committed.
Proof of an accident resulting in injury to a passenger, caused by the derailment of a street car, is sufficient to charge the company with negligence, and to cast upon it the burden of proof to show that the injury was caused without its fault.
The principle expressed by the Latin formula "res ipsa loquitur," "the thing itself speaks," is that where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from lack of proper care.
Entries in books of account, admissible as evidence under section 5907, Comp. Laws 1909, are inadmissible, when it does not appear, by the oath of the person who made such entries, that they are correct, and were made at or near the time of the transaction to which they relate, or where proof of the handwriting of the person who made the entries, in case of his death or absence from the county, is not made.
Commissioners' Opinion, Division No. 1. Error from District Court, Muskogee County; John H. King, Judge.
Action by Etta McIntire against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Gibson & Thurman, of Muskogee, for plaintiff in error.
A. E. Patterson and J. H. Lilley, both of Muskogee, for defendant in error.
Plaintiff sued defendant for injuries sustained while a passenger on one of its electric street railway cars, being operated in the city of Muskogee. The allegations of negligence contained in the petition were general. It was charged that the car on which plaintiff was a passenger, while being operated at a high rate of speed, suddenly left the track by reason of the negligence, mismanagement, and want of care of the servants, agents, and employés of defendant, in the negligent management and control of the car; and in the negligence of defendant in failing to furnish a safe and substantial railway upon and along its Fondulac Avenue line; and in failing to have and keep said car in good condition and repair. That upon the derailment of said car it came to a sudden and violent stop, thereby permanently injuring the plaintiff as set forth in her petition, to her damage in the sum of $5,300. Defendant's answer, in addition to containing a general denial, denied specially that plaintiff was a passenger on one of its cars on the day of the alleged injury.
Among the witnesses who testified for plaintiff was her husband, Perry McIntire. His testimony was objected to on the ground that he was an incompetent witness, being the husband of plaintiff. The court's action in permitting the witness to testify is assigned as ground for reversal. It was first shown upon examination of the plaintiff that she authorized her husband, about three weeks after the accident had occurred, to ascertain the name and whereabouts of a certain negro who was on the car at the time she was injured. Among other witnesses who testified for defendant was one Roger Wright, a negro, who testified that he was a passenger on a street car of defendant company on October 24, 1908, the date of plaintiff's injury, and that said car jumped the rail at Ninth street. Upon cross-examination, the time and place being fixed, Wright was asked concerning a certain conversation alleged to have taken place between him and Perry McIntire, in which he was said to have stated that at the time of the accident there was a negro woman on the car, who was injured by the accident, but that he did not know who she was. This conversation the witness denied, and it was then Perry McIntire was offered as a witness and testified that at the time charged he saw and had a conversation with Roger Wright, who told him that at the time the car was wrecked there was a negro woman on board.
It is insisted by counsel for plaintiff in error that McIntire had authority only to ascertain the name and whereabouts of Roger Wright, and when he had found Wright was the man that was on the Fondulac car that ran off the track at Ninth street, and his place of residence, he had done all that he was authorized to do, as his wife's agent, and that the witness was incompetent to testify as to any conversation concerning any other fact. Section 5842, Comp. Laws 1909, provides that husband and wife shall be incompetent to testify for or against each other, except concerning transactions in which one acted as the agent of the other. The question therefore presented is: Was the conversation given in evidence one concerning a transaction in which he acted as the agent of his wife? The question, on principle, has recently been decided by this court in the negative, in the case of Fish v. Bloodworth, 129 P. 32, where it was held that a husband could not testify to a conversation between his wife and a third person, particularly when the conversation was not had with the adverse party, and did not concern the vital issue of the case, though it was shown that the husband was acting for his wife, and went with her to the bank to talk about the matter with the cashier, who afterwards was a witness in the case. The husband's agency to gather testimony for his wife did not render him a competent witness to testify to a conversation had with one found by him to have been a passenger at the time of the accident.
But is the defendant company in a position to urge a reversal on account of the admission of McIntire's testimony? When it was shown that Perry was the husband of the plaintiff on the date of the accident, objection was made to his giving any testimony, which objection was by the court properly overruled, as the witness, his agency having already been established, was competent to testify to facts arising within the scope of his agency. No objection to the following question, touching the conversation, was offered, but after the witness had answered the question, objection was made not to the competency of the witness to answer the particular question, but to the competency, relevancy, and materiality of the question, and that the question was not a proper impeaching question. The question presented was before the court in Williams et al. v. Joins, 126 P. 1013, where it was held that, in order for...
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