Schultz v. United Telephone Co.
| Decision Date | 10 October 1931 |
| Docket Number | 30058. |
| Parties | SCHULTZ v. UNITED TELEPHONE CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action against corporation for conversion of stock, plaintiff held not incompetent to testify concerning alleged gift of stock from deceased registed owner (Rev. St. 1923, 60--2804).
In an action in conversion for the value of telephone stock by the plaintiff holder of unindorsed certificates of stock which plaintiff claimed to own by virtue of a gift inter vivos from her aunt, since deceased, in whose name the certificates were recorded in the books of the defendant corporation, where defendant, in knowing disregard of plaintiff's claim thereto, issued duplicate certificates to another claimant the plaintiff's testimony tending to prove a gift of the stock to her from her aunt was competent, since defendant was not within any of the classes protected by the statute (Rev St. 60--2804) which disqualifies a witness in certain cases from testifying in her own behalf in respect to a transaction with a deceased person.
Statute disqualifying witness from testifying concerning transaction with decedent is for protection of persons adversely interested in estate; litigant not within class protected by statute disqualifying witness from testifying concerning transaction with decedent cannot invoke statute (Rev. St 1923, 60--2804).
The provision of the Code, Rev. St. 60--2804, which disqualifies a witness to testify in her own behalf in respect to a transaction which she had with a deceased person, is for the protection of persons adversely interested in the estate of such deceased person, to wit, the executor, administrator heir at law, next of kin, surviving partner or assignee of such deceased person; and litigants not within that category cannot invoke the statute to exclude testimony of their adversary touching matters not within its scope.
In action against corporation for conversion of stock, plaintiff's testimony tending to prove gift inter vivos from deceased registered owner held competent against corporation; evidence held to establish conversion by corporation of stock owned by plaintiff through gift inter vivos from deceased registered owner.
The evidence adduced by plaintiff to prove a gift inter vivos of the stock was competent against the defendant corporation, and likewise sufficient to establish her cause of action for its conversion.
The other objections to the judgment in plaintiff's behalf considered and not sustained.
Appeal from District Court, Saline County; Dallas Grover, Judge.
Action by Carrie Schultz against the United Telephone Company. Judgment for the plaintiff, and the defendant appeals.
C. W. Burch, B. I. Litowich, and La Rue Royce, all of Salina, for appellant.
Z. C. Millikin, of Salina, for appellee.
This was an action for conversion of 12 shares of telephone stock to which plaintiff laid claim of ownership by virtue of an alleged gift inter vivos from her aunt in whose name the stock had been issued by the defendant company.
The circumstances were as follows:
The late Elizabeth Schindler of Saline county and her husband, Henry Schindler, were married in 1898. They had no children. She was a business woman, and through her labors in operating a boarding house she accumulated some property. According to plaintiff's evidence, the husband was rather lacking in enterprise and inclined to let his wife earn the living. He had the habit of coming to her for money and was somewhat disposed to pay attention to other women. The plaintiff, Carrie Schultz, was the niece of Elizabeth, being a daughter of Elizabeth's brother. Plaintiff's mother had been an invalid for years, which fact limited plaintiff's opportunities considerably, and this situation incited the solicitude of her aunt, Mrs. Schindler. In 1926 Mrs. Schindler was the owner of twelve shares of stock in the defendant telephone company. One Sunday in the spring of that year Mrs. Schindler, who lived in Salina, came to the Schultz farm home about four miles from the city. She carried with her that telephone stock. She departed that evening without it. It was then in the possession of Carrie. Elizabeth had not theretofore put any of her property in Carrie's keeping. She did not ask Carrie to hold the stock for her, nor did Carrie steal it. Next day Carrie took the stock to Salina and put it in a safety deposit box, where it remained under her control until after her aunt's death intestate on April 2, 1928. Two weeks later plaintiff, through her attorney, notified the defendant telephone company of her claim of ownership of the stock, as follows:
The defendant company acknowledged receipt of this letter two days later, April 18, 1928, stating, among other matters, that before dividends could be issued to Miss Schultz it would be necessary that the certificates be indorsed by Mrs. Schindler and that they be mailed to the company for transfer. Defendant's letter concluded with an assurance of its earnest co-operation in the matter.
However, on April 30, 1928, Henry Schindler, surviving husband and sole heir of Elizabeth, was appointed administrator, and, without taking oath or giving bond, he procured a summary order of the probate court directing him as administrator to cause the telephone stock to be transferred to himself individually. At its beginning this order recites that the proceeding was had on April 30, 1928, but at its conclusion it recites:
On April 30, 1928, Henry Schindler made an affidavit in which he averred that the only personal property of the late Elizabeth that had come into his possession as administrator was the twelve shares of telephone stock, but that he had made a thorough search and was unable to locate the certificates, and that to the best of his belief they were lost. On May 5, 1928, defendant issued new certificates of stock to Henry Schindler, thus canceling the ones held by plaintiff. The following day, May 6, 1928, Schindler sold the newly issued stock to Fred H. Quincy for $1,200.
Some time later correspondence between plaintiff's attorney and the defendant company concerning plaintiff's claim of ownership of the Elizabeth Schindler stock was renewed; but, although plaintiff offered to put up a bond to protect defendant, the latter could not then recognize plaintiff's rights in the stock, since it had reissued it to Henry Schindler and had recognized the rights of Quincy as latest transferee.
Hence this lawsuit for conversion of the stock.
Defendant's demurrer to the petition was overruled, and it then answered, pleading the facts. Plaintiff's reply alleged that she had not been apprised of the probate court proceedings, and that they were had without notice, and that the probate court had no jurisdiction to determine between herself and Henry Schindler the ownership of the stock. She further alleged that prior to the order of the probate court defendant had notice of plaintiff's ownership of the stock.
The cause was tried before a jury. On the assumption that the gift of the stock, if there was such a gift, was a transaction between plaintiff and her deceased aunt, and that her capacity to testify to the facts was therefore much restricted, plaintiff was not permitted to testify to the ultimate fact of the gift; and the competency of what testimony she did give is stoutly challenged in this appeal. Plaintiff's father testified that, about a year after the stock had come into plaintiff's possession, he had a conversation with his sister Elizabeth in which she asked him if he knew where Carrie kept that telephone stock that she (Elizabeth) had given her, and he had replied that it was in a safety deposit box in the Farmers' National Bank in Salina. Elizabeth said that was a good place for it, and that she was to draw the dividends herself as long as she lived; but she added that the stock might do the Schultz family "some good some day."
There was testimony on behalf of defendant that plaintiff had not been quite frank with Henry Schindler when he was inquiring about the whereabouts of the stock shortly after Mrs. Schindler's death. Plaintiff's reticence on that matter was accounted for, in part, by her youth and inexperience, and also because her aunt had told her not to tell Mr. Schindler, "because they had family difficulties and that would be worse." Instead, Carrie placed the stock in her attorney's hands, and he promptly notified defendant as set forth above.
The jury returned a verdict for plaintiff for $1,200 as the value of the stock, and answered many special questions consistently with the verdict. Some of these read:
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