Threadgill v. Anderson

• Decision Date: 13 March 1956
• Docket Number: No. 36804,36804
• Citation: 303 P.2d 297
• Parties: William J. THREADGILL, Administrator of the Estate of Yvonne Legate Nobel, Deceased, Plaintiff in Error, v. Iva J. ANDERSON, Administratrix of the Estate of Ernie Vest, Deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 297

303 P.2d 297

1956 OK 91

William J. THREADGILL, Administrator of the Estate of Yvonne Legate Nobel, Deceased, Plaintiff in Error, v. Iva J. ANDERSON, Administratrix of the Estate of Ernie Vest Deceased, Defendant in Error.

No. 36804.

Supreme Court of Oklahoma.

March 13, 1956.

Rehearing Denied Nov. 13, 1956.

Syllabus by the Court.

1. In an action by the administratrix of the estate of a deceased guest passenger against the administrator of the estate of a deceased motorist for damages for personal injuries said passenger suffered when the automobile driven by said motorist left the road due to said driver's alleged negligence, the deposition of said guest, taken before his death, was not inadmissible as testimony of an incompetent witness under the Dead Man's Statute, Tit. 12, O.S.1951 § 384, for neither the deceased guest, nor the administratrix of his estate, as plaintiff, 'acquired title to the cause of action immediately from such deceased' motorist under the requirement specified in said statute.

2. In said action the plaintiff did not have the burden of establishing, under the circumstances, exactly what caused the driver to lose control of the car when it left the road, but made out a prima facie case without such proof.

3. A judgment in accord with a verdict within the issues and supported by sufficient competent evidence, will not ordinarily be reversed for errors in procedure, including the admission of incompetent evidence and the giving of an instruction partially inapplicable to the issues, where there is nothing in the record to indicate that the verdict would have been different had such alleged errors not occurred, or there has been a miscarriage of justice, or the complaining party has in any manner been prejudiced or his constitutional and statutory rights violated.

Appeal from the District Court of Tulsa County; Elmer Adams, Judge.

Action by plaintiff, who was a guest passenger in an automobile, owned and driven by defendant's intestate, for damages for personal injuries he received when the automobile left the highway, due to intestate's alleged negligence. After said original plaintiff was shot to death, the action was continued by the administratrix of his estate, as plaintiff, and resulted in a verdict and judgment for him. Defendant appeals. Affirmed.

Houston Klein, Melone & Davidson, and Lee Grigg, Tulsa, for plaintiff in error.

Amos J. Nichols, and Edgar F. Vickery, for defendant in error.

BLACKBIRD, Justice.

In July, 1952, defendant in error's intestate, Mr. 'Ernie' or Ernest W. Vest, at the request of plaintiff in error's intestate, Mrs. Yvonne Legate Nobel, accompanied her on a trip, in her automobile, from Tulsa, Oklahoma, where the parties lived, to Joplin, Missouri, with Mrs. Nobel doing the driving. They started back to Tulsa that night, and en route, at about 2:00 A.M., the next morning, near Claremore, Oklahoma, Mrs. Nobel's auto ran off the highway and down an embankment into a bar ditch, wrecking said car with both of the parties in it, killing Mrs. Nobel and injuring Mr. Vest.

In February, 1953, Mr. Vest instituted the present action against plaintiff in error, as defendant, to recover from Mrs Nobel's estate, damages for the injuries he suffered in said accident, on the theory that they were due to Mrs. Nobel's negligent operation of the car in which he was a guest passenger.

In May, about two months after the filing of the action, defendant administrator, by agreement between his attorney at that time and attorneys for plaintiff, took Mr. Vest's deposition before a court reporter in plaintiff's counsel's Tulsa law office. In a dictated statement, apparently made as a preface or preliminary to the deposition, the attorneys, Mr. K._____, for defendant, and Mr. N._____, for plaintiff, entered into the following stipulation:

'Mr. K._____: Depositions taken by agreement, and may we reserve objections?

'Mr. N._____: Until the time of trial.

'Mr. K._____: To be asserted with the same force and effect as if made now.

'Mr. N._____: Yes, sir.

'Mr. K._____: And waiver of signature.

'Mr. N._____: Yes, sir.'

Later, before the case came to trial, Mr. Vest was shot to death and the cause was revived in the name of the administratrix of his estate. After she became plaintiff in the action, and it appeared that the defendant had never filed Vest's deposition in the cause, she obtained an order from the court requiring that this be done, to which ruling defendant excepted, and thereafter filed both a motion to strike the deposition from the files in the cause, and written objections to its use, on the principal ground that it was inadmissible 'under the Statutes of Oklahoma', which allegation obviously referred to the so-called 'Dead Man's Statute' Tit. 12, O.S.1951 § 384.

Later, when the cause came on for trial, the court allowed plaintiff to introduce said deposition as a part of her evidence, over defendant's objections, then renewed orally. It was the only direct evidence offered throughout the trial as to how the accident happened, or whether or not it was proximately caused by any negligence on Mrs. Nobel's part. At the close of plaintiff's evidence, defendant interposed a demurrer thereto and at the close of all of the evidence moved for a directed verdict. These were overruled and the cause was submitted to the jury, which thereafter returned a verdict for plaintiff. After entry of judgment in accord with said verdict, defendant pefected the present appeal. Our continued reference to the parties will be by their trial court designations.

For reversal, defendant urges as his 'Proposition I' that the trial court erred in requiring him, by the above-mentioned order, to file Vest's deposition in the cause, and, in later allowing it to be introduced in evidence by the plaintiff administratrix, both of which actions, as hereinbefore noted, were over his objections. His counsel recognize that this court, in the rather early case of Cox v. Gettys, 53 Okl. 58, 156 P. 892, held that where the plaintiff took the deposition of the defendant with reference to certain transactions had with a deceased person, said defendant's incompetency to testify under the 'Dead Man's Statute' supra, was waived, 'whether the deposition was ever completed and filed in court or not.' They argue, however, that there are certain important factual distinctions between that case and the present one, which render the rule, there followed, inapplicable here. We see no reason for expressing our opinion on the asserted question of waiver, on which the views of various courts do not appear to be strictly in harmony, see, for instance, Anderson v. Benson, D.C.D.Neb., 117 F.Supp. 765; Pink v. Dempsey, 350 Ill.App. 405, 113 N.E.2d 334; American Fruit Growers, Inc., v. Calvert, 186 Wash. 29, 56 P.2d 1307, and the cases cited in Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 A.L.R.2d 1431, and in the Annotations at 159 A.L.R. 411, 412; 134 A.L.R. 212, 230-232, inclusive; 107 A.L.R. 482, 491, and 64 A.L.R. 1148, 1165, if the objection said to be waived is without foundation. The claimed foundation of said objection, i. e the Dead Man's Statute, supra, reads in part as follows:

'No party to a civil action shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where such party has acquired title to the cause of action immediately from such deceased person; * * *.' (Emphasis ours.)

In the present case, neither the administratrix, who was the plaintiff in the action at the time Vest's deposition was introduced, nor Ernest Vest, the original plaintiff, whose incompetency as a witness, after Mrs. Nobel's death, is said to be established by the above-quoted statute, was, as specified therein: '* * * such party * * * (as) acquired title to the cause of action' against Mrs. Nobel, or the representative of her estate, 'immediately' from her ('such deceased person'). Causes of action for tort are provided for under statutes such as Tit. 76, O.S.1951 § 5, and Tit. 23, O.S.1951 § 61, which render everyone responsible in damages for injuries to others caused by his or her negligence. Nor did plaintiff's cause of action 'devolve from the deceased', or her estate. See Olson v. State Farm Mutual Automobile Ins. Co., 252 Wis. 37, 30 N.W.2d 196. We think the portion of the statute emphasized above is sufficient to show that it does not cover the deposition of Vest, without regard to whether an automobile accident, like the one involved here, is a 'transaction' within the meaning of that word as used in one of the opening lines of said statute. (As to the latter, notice Blashfield's Cyclopedia of Automobile Law and Practice (Perm.Ed.), Vol. 9C, sec. 6325, indicating a divergence of views on that question). Furthermore, this conclusion is in harmony with the previous decisions of this Court and the rule of strict construction to which it has adhered. Mike v. Gidney, 195 Okl. 472, 159 P.2d 240. Notice also Berry v. Janeway, 206 Okl. 555, 245 P.2d 71, and Preston v. Berry, 205 Okl. 63, 234 P.2d 417.

Under Propositions II and IV of the defendant's brief, his counsel argue respectively that in admitting those portions of Vest's deposition in which (among other things) the deponent opined concerning the speed of Mrs. Nobel's auto previous to the accident, the trial court erroneously admitted testimony on a subject about which Vest was not qualified to give an opinion; and that his deposition as a whole (being as hereinbefore indicated the only evidence on the subject) was insufficient to establish negligence on the part of Mrs. Nobel and that any such negligence was the proximate cause of the accident. We have thoroughly examined Vest's deposition and recognize that it does not...