Shields v. Ekman

• Decision Date: 09 July 1926
• Docket Number: 4356
• Citation: Shields v. Ekman, 67 Utah 474, 248 P. 122 (Utah 1926)
• Court: Utah Supreme Court
• Parties: SHIELDS et ux. v. EKMAN et al

248 P. 122

67 Utah 474

SHIELDS et ux. v. EKMAN et al

No. 4356

Supreme Court of Utah

July 9, 1926

Appeal from District Court, Third District, Tooele County; L. B Wight, Judge.

Action by Robert E. Shields and wife against Joseph Ekman and another, as executors of the estate of H. C. and Eliza Hanson.Judgment for plaintiffs, and defendants appeal.

AFFIRMED.

Irvine Skeen & Thurman, of Salt Lake City, and E. LeRoy Shields, of Tooele, for appellants.

G. A Iverson, of Salt Lake City, and John B. Gordan, of Tooele, for respondents.

FRICK, J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

The plaintiffs, husband and wife, commenced this action against the appellants as executors of the estate of H. C. and Eliza Hanson, both of whom died testate.The decedents were the parents of the respondentEliza Shields, and she is the wife of the respondentRobert G. Shields.

The action was instituted to recover for services which the respondents alleged they had rendered in caring for and nursing the decedents during the last illness of each of them.Mrs. Hanson at the time of her death had attained the age of 75 years, while Mr. Hanson was 70 years of age when he died.Both were afflicted with physical infirmities more or less serious and required care and assistance as well as nursing during a considerable time before their death.Respondents had in due course of administration filed a joint claim against the estate of both decedents.The claim was disallowed by appellants as executors of the estates of the decedents, and this action followed such disallowance.

The district court found all of the issues in favor of respondents and entered judgment in their favor for the sum of $ 660 for services rendered as aforesaid during two periods of time, aggregating 19 months, as follows: The first period commenced on September 1, 1921, and ended December 31, 1921, and the second period commenced on January 1, 1922, and ended April 30, 1923.During the first period respondents were allowed compensation at the rate of $ 1.50 per day, while during the second period they were awarded compensation at the rate of $ 30 per month.This appeal is from the judgment rendered as aforesaid.

In view of the questions presented for decision, we do not deem it necessary to refer specially to the pleadings or to the evidence, and shall do so only as that may be necessary in the course of the opinion in connection with the questions decided.

In establishing their claim, both of the respondents, without objection, were permitted to fully testify respecting the matters in issue, including the oral conversations and communications that passed between them and the decedents respecting the services rendered and the alleged statements and promises of the decedents regarding the remuneration to be made for the services rendered by respondents for the decedents as well as the reason why the services were rendered.

Although no objections were interposed and no exceptions taken to the testimony of respondents in the court below, appellants, nevertheless, for the first time insist in this court that the testimony of both of the respondents should be disregarded and should not be given any probative force or effect.It is further contended that if such a course is followed there is no evidence to support the findings of fact, conclusions of law, and judgment entered in this case.The question, therefore, is squarely presented whether in the absence of any objections and exceptions to the testimony of the respondents in the court below, this court may, nevertheless, disregard their testimony and set aside the findings and reverse the judgment for the reason last above stated.Appellants' contention is based upon Comp. Laws Utah 1917, § 7123, which, so far as material here, provides:

"The following persons cannot be witnesses: * * *

"A party to any civil action, suit, or proceeding * * * when the adverse party in such action * * * defends * * * as the executor or administrator * * * as to any statement by or transaction with, such deceased * * * or matter of fact whatever, which must have been equally within the knowledge of both the witness and such * * * deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit, or proceeding."

Their counsel insist that the provisions of the foregoing statute absolutely and unconditionally prohibit the parties mentioned in the statute from testifying and that for that reason no objections or exceptions are necessary, and further that the personal representative of the deceased could not waive the statutory prohibition.

The precise question here presented is one of first impression in this jurisdiction.Counsel for appellants cite and rely upon Clement v. Cureton, 36 Ala. 120;Gorham v. Gorham, 41 Conn. 242;McHugh v. Dowds' Estate, 86 Mich. 412, 49 N.W. 216, andHubbell v. Grant, 39 Mich. 641.It must suffice to say that the decisions in the first two cases cited have no application to the question now before us.While the last two cases cited, in part at least, sustain counsel's contention, yet the conclusion of these cases as we shall point out hereafter have been modified in subsequent cases emanating from the same court.

Referring now to the peculiar language of our statute, upon which counsel for appellants specially rely, namely, that the parties mentioned in the statute"cannot be witnesses,"we find that the California Code of Civil Procedure, § 1880, subdiv. 3, contains the same language.That section reads:

"The following persons cannot be witnesses: * * * Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand, against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person."

As the writer views it, the language of that section is more restricted even than is the language of our statute, although our statute in some respects is more specific.The effect to be given to the California statute was considered by the Supreme Court of that state in the case of Kinley v. Largent, 187 Cal. 71, 200 P. 937.It was contended by the appellants in that case, as it is by the appellants in the case at bar, that the language that parties to actions "cannot be witnesses" was absolute and that no objection or exception was necessary in the court below.Further, that the personal representative of a deceased person could not waive the provisions of the statute.The Supreme Court of California, however, after carefully considering the purpose or object of the statute, unanimously held that the personal representative could waive the provisions of the statute.The court, in the course of the opinion, said:

"The provision of section 1880, subdivision 3, of the Code of Civil Procedure, that parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim, or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person, cannot be witnesses, may be waived by the personal representative of the decedent."

The foregoing conclusion was arrived at after a very careful consideration of the negative phrase that certain persons "cannot be witnesses."To the same effect is McClenahan v. Keyes, 188 Cal. 574, 206 P. 454.In view of the authorities, the writer is firmly convinced that no other conclusion than that announced by the Supreme Court of California is permissible.In Jones, Comm. on Ev., vol. 4, § 780, p. 726, the effect of statutes like our section 7123, supra, and the question of waiver are discussed at considerable length.After commenting on the purpose and the effect of statutes conferring the right upon parties to testify contrary to the rule prevailing at common law and of those containing provisions or exceptions like our section 7123, the author says:

"This exception of the...