Thurston v. Fritz

• Decision Date: 07 February 1914
• Docket Number: 18,522
• Parties: J. W. THURSTON, as Executor, etc., Appellant, v. FRANK FRITZ et al., Appellees
• Court: Kansas Supreme Court

138 P. 625

91 Kan. 468

J. W. THURSTON, as Executor, etc., Appellant, v. FRANK FRITZ et al., Appellees

No. 18,522

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Ruling reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEMURRER--Court Can Not Weigh Conflicting Evidence. The rule that if the evidence demurred to presents a question of fact for the jury the demurrer should be overruled--followed.

2. DYING DECLARATIONS--Admissible in Civil Cases. The rule that dying declarations are admissible only in criminal cases (and those involving homicide) is without reasonable basis, and should not longer be followed.

James A. Troutman, Z. T. Hazen, and R. H. Gaw, all of Topeka, for the appellant.

Bennett R. Wheeler, and John F. Switzer, both of Topeka, for the appellees.

West J. Benson, J. dissenting. Justices Mason and West concur in this dissent.

OPINION

WEST, J.:

At the close of the plaintiff's testimony the court sustained a demurrer thereto, and this ruling is assigned as the principal error complained of. The action was brought to recover a balance claimed to be due from the defendants for a tract of land (including about $ 300 worth of personal property) formerly owned by the plaintiff's testator, John Rund, which the evidence shows was worth from $ 4500 to $ 6000. The testimony was to the effect that sometime before a sale was made defendant Beal had a conversation with Rund about buying the farm and made him an offer, and a friend advised Rund to sell it for $ 5000 but he said he would not, but that Beal had offered him $ 4500. Defendant Fritz told various parties that he had bought the land and had paid $ 4800 for it. September 29, 1908, Rund conveyed the land to Fritz, the consideration being expressed as "Five dollars and other valuable consideration." The same day Beal gave Fritz a check for $ 3000, which the latter deposited and upon the same day gave a check to Rund for the same amount, which he testified was part of the purchase price of the land. October following Fritz and wife conveyed to Beal, the deed expressing the consideration as "Five dollars and other valuable property." In 1909 Rund went to Europe. After his return he was in bad health and had to have the constant care of a nurse. While so situated the defendants visited him at his house, when Rund asked for money. Afterwards the nurse, at his instance, wrote to the defendants to come in and settle, but she did not understand the nature of the desired settlement. Notwithstanding the serious physical condition of Mr. Rund and the severity of the weather, the defendants insisted on taking him from his home out to the country, and on returning the next day to accomplish this were prevented from entering the house by the fact that he had locked it against them. One witness testified that Fritz told him he had bought the farm and would like him to move upon it and work for him, and that he would not have to pay rent; that he, Fritz, did not know how long he would keep it, and that if he did sell the witness would not have to move until spring anyhow. Before this time the witness had been working for Beal, and after moving into the house husked corn on the farm for Beal.

It is the theory of the plaintiff that the deceased had received but a portion of the price of his farm and that the testimony sufficiently tended to show this fact to warrant the submission of the case to the jury. Under the familiar rule it is not necessary that the evidence be such as to warrant a verdict but only sufficient to present to the jury a question of fact. (Christie v. Barnes, 33 Kan. 317, 6 P. 599; Farnsworth v. Clarke, 62 Kan. 264, 62 P. 655; Buoy v. Milling Co., 68 Kan. 436, 443, 75 P. 466; Coon v. Railway Co., 75 Kan. 282, 89 P. 682; Berry v. Craig, 76 Kan. 345, 91 P. 913.) Men are presumed to intend the natural consequences of their acts, and the peculiar circumstances attending the conveyance of this land, the consideration recited, the statements by one of the defendants of the price paid by him, the anxiety of the deceased to collect money from the defendants together with their apparent desire to get him away from his home and under their control while critically ill are things from which the jury might fairly draw the inference that the defendants still owed part of the purchase price.

A witness was asked how much a certain prospective purchaser whom he had taken to look at the farm offered Mr. Rund therefor, the purpose being to show an offer of $ 5500. An objection to this testimony was sustained, and this is complained of as excluding evidence to show the value of the land and that Rund had been offered a much larger sum than Fritz said he had paid for it. We find no error in this ruling, however, which had the effect of excluding a matter involving a collateral issue, and having little if any probative force.

Mr. Rund died on the evening of August 21, 1910. The evening before at the hospital he stated that he had been advised by his physician, the nurse and the priest that he could not live long and that he wanted to make a statement before he died. He thereupon dictated and signed in the presence of several witnesses a statement, which was reduced to writing and purported to give the facts of the transaction involved therein, and closed with these words: "I make this statement for the reason that I am very sick and am informed that I can not live long. This statement is my dying declaration and is the truth about the sale of my farm to Mr. Fritz and Mr. Beal." This was offered as evidence and rejected under the well-settled rule holding such declaration incompetent. We are asked to do away with this rule, which it is asserted has no sensible or substantial basis.

The theory on which dying declarations have been admitted is that the realization of impending death operates on the mind and conscience of the declarant with strength equal to that of an ordinary oath administered in a judicial proceeding. After such declarations became classed as hearsay in other cases it was thought better to accept this sort of substitute for a formal oath in homicide cases than to let a guilty manslayer escape. As stated in The State v. O'Shea, 60 Kan. 772, 57 P. 970, the rule is limited to cases of homicide and is confined to the act of killing and the circumstances immediately attending the act which form a part of the res gestae. In The State v. Bohan, 15 Kan. 407, it was said by Chief Justice Kingman:

"Its admission can be justified only on the ground of absolute necessity, growing out of the fact that the murderer by putting the witness, and generally the sole witness, of his crime beyond the power of the court, by killing him, shall not thereby escape the consequences of his crime." (p. 418.)

But in The State v. Reed, 53 Kan. 767, 37 P. 174, the present chief justice stated that:

"The controlling question is, whether the declarations were uttered under a sense of impending dissolution, and the fact that death did not immediately ensue, or that a hope of recovery was subsequently entertained, will not affect their admissibility." (p. 773.)

And in The State v. Knoll, 69 Kan. 767, 77 P. 580, the statement was made that:

"The reasons why dying declarations are taken out of the rule which excludes hearsay testimony are those of necessity, joined with the conclusion that a realization by the declarant of the certain and speedy approach of death would be as powerful an incentive on his part to tell the truth as would the administration of an oath." (p. 770.)

The history of the rule and its application as given by the leading text-writers on evidence shows that at a very early time it was thought with the fathers of the civil law that one would tell the truth on his deathbed, and for a time dying declarations were admitted in cases both civil and criminal; but later they were confined to cases of homicide, the idea having become prevalent that so exceptional and dangerous a class of evidence should be restricted in its use and application to the "public necessity of preserving the lives of the community by bringing manslayers to justice." (1 Greenleaf on Evidence, 15th ed., § 156.)

It has ever been realized that the party most vitally affected by such declarations is without the means of cross-examination and it is somewhat curious to observe the readiness with which the courts have concluded that their admission is not in conflict with the constitutional right to meet one's witness face to face. (1 Elliott on Evidence, § 345.) It would seem that the courts first conceived and recognized the sanction which impending death would give to the statement, and that this was rather a predecessor than an exception to the general rule excluding hearsay testimony; that after hearsay had become generally regarded as inadmissible it was reasoned that dying declarations inherently belong in that class, but that as a matter of public policy or necessity their legitimacy should be recognized in homicide cases only. One author informs us that some of the earlier text-writers interpreted the rule as applying to civil as well as criminal cases and the courts upon examination found that such interpretation was incorrect. (1 Elliott on Evidence, § 351.) Another states that up to 1800 no distinction is found...