Smith v. Hanson

• Citation: 96 P. 1087,34 Utah 171
• Decision Date: 29 July 1908
• Docket Number: 1918
• Court: Supreme Court of Utah
• Parties: SMITH v. HANSON

96 P. 1087

34 Utah 171

SMITH v. HANSON

No. 1918

Supreme Court of Utah

July 29, 1908

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by H. A. Smith against Emma Hanson, administratrix of John Peter Johnson, deceased. From a judgment for plaintiff defendant appeals.

MODIFIED AND AFFIRMED.

Bailey & Vickery and E. A. Walton for appellant.

Edwards Smith & Price for respondent.

STRAUP J. McCARTY, C. J., FRICK, J., concurring.

OPINION

STRAUP, J.

In 1892 and 1895 John Peter Johnson, since deceased, conveyed to his daughter, Emma Hanson, two parcels of land, one a five-acre tract, the other a ten-acre tract, situate in Salt Lake county. It is claimed by the respondent, who is an attorney at law, that he was employed to commence proceedings in the name of the deceased and for his benefit to cancel the deeds. Such an action was commenced in July, 1900, and thereafter prosecuted by him, which resulted in a judgment canceling the deeds. On appeal the judgment was modified, canceling the deed to the ten-acre tract only. The deceased died in August, 1901, after the judgment was rendered in the lower court, but before the appeal was taken to the Supreme Court. Thereafter the respondent brought this action against Emma Hanson, the administratrix with the will annexed of the deceased's estate, to recover compensation for his services. The defendant denied that the respondent was employed at the instance or request of the deceased, and alleged that he was employed by her brothers and sisters, who desired the cancellation of the deeds, and that the action was prosecuted for their benefit, and not for the benefit or at the request of the deceased. The jury rendered a verdict for the plaintiff. The defendant appeals.

When the action was commenced to cancel the deeds, the deceased was more than eighty years of age. He was ill and feeble, and unable to leave the house. The respondent had no personal transactions with the deceased. It was not claimed that he was employed by him personally, but by some of his sons and daughters, whom the deceased had authorized to employ counsel to commence the action. It was testified to by some of them that the deceased requested one of his sons to consult a lawyer and ascertain if there was "any show to recover his property." This son, together with some of his brothers and sisters, consulted the respondent, who advised them and told them to communicate with their father. They did so, and afterwards employed the respondent to commence and prosecute the suit. They further testified that such fact was communicated to the deceased, who approved of it, and that, when the judgment was rendered canceling the deeds, the deceased expressed himself well pleased with the result. The appellant gave evidence tending to show that the deceased, since the execution of the deeds, resided with her and was cared for by her; that shortly before the commencement of the action her brothers took the deceased against his will from her house to the home of one of her brothers, where neither she nor immediate members of her family were permitted to see him until the suit had been instituted. In support of her defense that the deceased had not authorized the bringing of the action and had not authorized his sons to employ counsel, the defendant offered to prove statements or declarations made by the deceased, not in the presence of the respondent, about the time the suit was commenced and shortly thereafter, to the effect that he was "not going to sue" his daughter, that he had not started the suit and that he did not know anything of such a lawsuit having been started. The testimony was excluded by the court on the ground that it was hearsay and self-serving. This ruling presents the principal question for review.

The appellant urges that the declarations, when made, were not self-serving, but disserving, and were therefore exceptions to the giving of hearsay testimony. The general rule is that declarations, whether verbal or written, made by a person as to facts presumably within his knowledge, are an exception to the hearsay rule, and admissible in evidence, if relevant to the matter of inquiry, when it appears that the declarant is dead, that the declaration was, at the time when it was made, against a pecuniary or proprietary interest of the declarant, that it was of a fact in relation to a matter of which he was personally cognizant, and that he had no probable motive to falsify or misstate the fact declared, which is generally shown by proof that it was made ante litem motam. From a reading of section 435, 1 Elliott on Evidence, it seems the rule is there stated that declarations against interest are those which are made by strangers to the litigation, and not those made by persons in privity with the parties. It is there said:

"Declarations against interest are distinguished from admissions and confessions, in that they are made by strangers, against their interest, rather than declarations made by a party or privy, against his own interest, and received as direct evidence of the facts declared, while admissions and confessions are received more as waivers of the proof of certain facts. Admissions are generally declarations of parties and those identified in interest with parties, and the declarant may or may not be dead, while these are declarations made by strangers since deceased; that is, by persons not in privity with the parties to the proceedings." The rule is stated to the same effect in 4 Enc. Ev., 87-89, and in 2 Jones on Ev., sec. 327.

If it should be said that declarations against interest, as distinguished from admissions, are admissible as such only when made by strangers since deceased, and not by persons since deceased in privity with the parties then the evidence was properly excluded for it is apparent that the declarant was in privity with the party offering the testimony. If these text-writers had said that declarations against interest are admissible, not only when made by persons since deceased and in privity with the parties, but also when made by persons since deceased who were strangers to the litigation and to the parties such statement, we believe, would be more in harmony with the adjudicated cases. Probably that is all that is meant by the expressions of the authors referred to. We have been cited to no case where a declaration against interest was excluded because made by a person in privity with the parties. To the contrary, we find numerous cases where such a declaration of a person since deceased was held properly admitted, though the declarant was in privity with the party litigant offering the declaration, and where it was received, not as an admission of one identified in interest with a party litigant, but as direct evidence of the fact declared. The following are a few of such cases: Coffin v. Bucknam,a 12 Me. 471; Humes v. O'Bryan & Washington,a 74 Ala. 64; County of Mahaska v. Ingalls,a 16 Iowa 81; German Ins. Co. v. Bartlett, 188 Ill. 165, 58 N.E. 1075, 80 Am. St. Rep. 172; Lehman v. Sherger, 68 Wis. 145, 31 N.W. 733; Taylor v. Witham, 3 Ch. D. 605.

It is therefore necessary to inquire further into the matter. The declarant was dead. It may well be said that the facts declared were presumably within the knowledge of the deceased. They were relevant to the matter of inquiry. They were made ante litem motam. The further question is: Was it sufficiently made to appear that the declarations were against the interest of the declarant at the time when made? The authorities generally hold that to be against interest the declaration must be against a pecuniary or proprietary interest of the declarant. While Mr. Wigmore, in his work on Evidence (volume 2, section 1476), says that the doctrine should be extended to include a penal interest and all declarations of facts against interest of a deceased person nevertheless he concedes that the cases have limited the admissibility of the declarations to a pecuniary or proprietary interest at the time when made. He asserts however, that such a limitation was fixed arbitrarily. Whatever force there may be to the suggestions of Mr. Wigmore, it cannot be doubted that the rule is firmly established in England and in this country that, in the absence of a statute, the declaration, to be admissible, must be against either a pecuniary or a proprietary interest. Quite true, in the case of State v. Alcorn, 7 Idaho 599, 64 P. 1014, 97 Am. St. Rep. 252, it was held that it was sufficient if the declaration tended to show "a state of facts inconsistent with" the declarant's "observations of the rules of chastity," and that no "beneficial purpose of the deceased could be served by the declaration." In the case of Moore v. Palmer, 14 Wash. 134, 44 P. 142, the declarations of a deceased person, which were not even disserving, but wholly self-serving, at the time when made, were admitted, in favor of his administrator, in an action brought against him to recover for professional services rendered the deceased to show "the improbability of the deceased's paying any such sum to the appellant for legal services, and as further tending to show that such services, if any in fact were rendered, were unimportant, and the estimate in which deceased held appellant as an attorney."

If we correctly understand the questions involved in these cases we believe the rulings there made to be against the clear weight of authority. In a sense it may be said that the declarations of the deceased, when he declared that he had not started the suit, that he was not going to sue his daughter, and that he had no knowledge of such a suit having been started, were, at the time when made, against some sort of the declarant's interest. At least, it...