Sands v. David Bradley & Co.

• Decision Date: 07 January 1913
• Docket Number: Case Number: 2492
• Citation: 36 Okla. 649,129 P. 732,1913 OK 32
• Court: Oklahoma Supreme Court
• Parties: SANDS v. DAVID BRADLEY & CO.

1913 OK 32

129 P. 732

36 Okla. 649

SANDS v. DAVID BRADLEY & CO.

Case Number: 2492

Supreme Court of Oklahoma

Decided: January 7, 1913

Syllabus

¶0 1. WITNESSES--Competency--Wife of Party. Defendant offered his wife as a witness in his own behalf, on the theory that the transaction about which she was to testify occurred prior to their marriage, and that the statute prohibiting a wife from testifying for or against her husband did not extend to transactions or communications prior to the marriage. She was not jointly interested in the action; nor was she the agent of her husband. Held, that she was incompetent as a witness.

2. SAME. The competency of the wife as a witness depends upon the relationship at the time of the trial, when she is offered as a witness, and not as to whether she was the wife at the time the cause of action accrued, or the occurrence transpired, about which she is expected to testify.

3. APPEAL AND ERROR--Conflicting Evidence--Review. Where the evidence on an issue of fact is conflicting, this court will not examine the same to determine where the weight lies but if there is any evidence reasonably tending to support the verdict the same will not be disturbed on appeal.

Error from District Court, Osage County; John J. Shea, Judge.

Action by David Bradley & Co. against A. S. Sands to recover a money judgment. From a judgment for plaintiff, defendant brings error. Affirmed.

Boone, Leahy & MacDonald, for plaintiff in error.

Hainer, Martin, Bush & Murry, for defendant in error.

ROBERTSON, C.

¶1 This was an action to recover from defendant the sum of $ 500, together with interest thereon at 6 per cent. from August 31, 1901. Plaintiff, in its petition, charged that defendant, in 1901, was a practicing attorney at Wilber, Saline county, Neb.; that in 1894 it obtained a judgment in the district court of said county against Wilder & Nelson in the sum of $ 1,252.16; that said judgment was placed in the hands of defendant for collection; that he collected thereon the sum of $ 500 on August 31, 1901, and failed to remit the same, but, on the contrary, converted it to his own use; that said collection so made by said attorney was not known by plaintiff until subsequent to 1907, after defendant had removed from Nebraska to Oklahoma. Defendant answered by general denial, and a trial was had to a jury, which resulted in a verdict in favor of plaintiff and against defendant in the sum of $ 749.75, on which judgment was entered. Motion for new trial was presented and overruled, and defendant appeals.

¶2 Two questions are presented by the record for our consideration; the first being: The court erred in excluding the testimony of Mrs. Mable D. Sands, the wife of defendant.

¶3 Defendant does not claim that she was a competent witness by reason of her being his agent, or jointly interested in the action, but upon the grounds that at the time the transaction took place, about which she was to testify, she was not the wife, but the stenographer, of defendant, and that the statute prohibiting the wife from testifying for or against the husband clearly intended only to prevent the wife or husband from giving evidence for or against each other concerning a transaction or communication during coverture. We cannot find such an exception to the statute; nor has counsel directed us to any authority sustaining such contention. Subdivision 3 of section 5842, Comp. Laws 1909, reads as follows:

"Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterwards."

¶4 This statute was called into existence on the grounds of public policy. It is based upon the marital relation, and has been universally upheld by the courts. In volume 6, Ency. Ev. p. 847, it is said:

"Various reasons were assigned for this rule of exclusion. Among these were the supposed bias of affection, fear of sowing dissensions between man and wife, occasioning perjury, and the like. The most usual reason, however, given for this rule of exclusion was partly identity of interest, and partly the necessity of guarding the security and confidence of the marriage relation; the objection of interest applying more particularly to their being witnesses in favor of each other, and the objection of public policy applying to their being witnesses against each other."

¶5 Mr. Justice Trunkey, in Darlington's Appeal, 86 Pa. 512, 27 Am. Rep. 726, in discussing the reasons for the prohibition of the parties testifying who sustain such confidential relations, said:

"The foregoing principles are too familiar for citation of text-book or report. It is equally unnecessary to show by authority that the most dominant influence of all relations is that of the husband over

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