Warten v. Black

• Decision Date: 30 June 1915
• Docket Number: 8 Div. 807
• Citation: 195 Ala. 93,70 So. 758
• Parties: WARTEN et al. v. BLACK.
• Court: Alabama Supreme Court

70 So. 758

195 Ala. 93

WARTEN et al. v. BLACK.

8 Div. 807

Supreme Court of Alabama

June 30, 1915

Rehearing Denied Jan. 20, 1916

Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.

Detinue by Henry Warten against Owen Black. Plaintiff having died the action was revived by Leo M. Warten and others as executors. Judgment for defendant, and plaintiffs appeal. Affirmed.

McClellan J., dissenting.

W.R Walker, of Athens, for appellants.

Sanders & Thach, of Athens, for appellee.

SAYRE J.

This action of detinue was brought by Henry Warten against appellee for the recovery of horses, mules, baled hay, and farm implements. During the progress of the cause Warten died, and there was a revivor by appellants as his executors. Plaintiffs claimed title to the property in suit with one exception to be noted later under a mortgage executed by defendant to their testator; while defendant claimed that the mortgage title had been divested by payment and discharge of the mortgage debt. Defendant adduced evidence the competency of which is not denied, going to show that upon a settlement had with deceased, dissolving relations between them, it was agreed in substance that defendant should have credit for "all expenses of the cattle business," then a thing of the past. By evidence of like character it was shown that during the year 1912 defendant had kept, pastured, and fed cattle for deceased, and there was evidence of the value in general of such services; but there had been additions to and subtractions from the herd from time to time, so that no disinterested witness was able to furnish data for anything like a definite estimate of the credit claimed by defendant. It thus became a matter of importance to defendant that he should testify as to these matters, and, over objections which took the point that the witness as a party interested in the issue tried was disqualified by section 4007 of the Code, he was allowed to testify to the number of cattle fed by him and the length of time they were fed.

So much of the section as comes into question reads as follows:

"No person having pecuniary interest in the result of the suit or proceedings shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding."

Defendant refreshed his recollection by referring to a book in which he had made contemporaneous entries; but it is conceived that this made no difference in the application of the rule of exclusion prescribed by the statute. Plainly, then, stated in its best form for appellant, the inquiry is whether, in testifying as to the length of time he had cared for the cattle of deceased and the number on hand each day during the period--nothing more--defendant testified as to a transaction with deceased. Plaintiffs saved their exceptions to the ruling in this form. But let it be noted at this point that the evidence to which exceptions were reserved was not offered to prove an express original promise on the part of the deceased to pay for the feeding of the cattle, nor to fasten liability on his estate by way of an implied promise so to pay. Nor was it offered as going to show the agreement for a credit, which agreement alone was the precise obligation defendant was seeking to enforce, and as to which the issue in the cause stood for decision on the testimony of entirely unobjectionable competency. The evidence under consideration had no tendency to prove the alleged agreement for a credit, nor any bearing on that question, save as it tended to prove collateral facts, the effect of which was to change the aspect of the case as previously developed by defining the full meaning and operation of the agreement for a credit, if established, and for that purpose it was, we think, admissible under the rule of Miller v. Cannon, 84 Ala. 59, 4 So. 204.

But appellants rely upon Miller v. Cannon as establishing the inadmissibility of this testimony. It will be observed in respect of the opinion in that case that Chief Justice Stone, while reviewing some previous cases and undertaking to formulate a comprehensive statement as to the interpretation of the statute, did not in terms define "transaction." Perhaps, in view of the previous cases in which specific applications of the statutory rule had been made, he deemed any formal definition hardly worth while. Touching, however, upon the subject, he did say that testimony, the direct office and purpose of which is to corroborate or weaken, strengthen or rebut, other evidence of a transaction with decedent, is equally within the reason and spirit of the prohibition. This branch of the rule is illustrated by the decision in Englehart v. Richter, 136 Ala. 562, 33 So. 939, and perhaps Ware v. Burch, 148 Ala. 529, Wood v. Brewer,

73 Ala. 259, in which he had written that a transaction, to come within the class of transactions with a deceased person, "must be some act done by the deceased, or in the doing of which he personally participated." By reference to the facts in Wood v. Brewer, it will be seen that they bear a close analogy to the facts in the case before us, calling for the application of an identical-principle, whatever the true principle may be. That case may therefore be considered as strongly persuasive, if not conclusive, in the case at hand. The authority of that case was not doubted in Miller v. Cannon. On the contrary, it seems to have afforded the basis for the qualification of the general rule there cited.

After the decisions to which we have referred, and other of our cases illustrating the application of the rule of exclusion to be cited hereafter, it may seem hardly necessary to go out of this state for authorities; still it may contribute something to definition of the idea which we think must control our decision on this point to note the language and rulings of some other courts in construing similar statutes. In Moores v. Wills, 69 Tex. 109, 5 S.W. 675, it is said in general terms that the rule of exclusion does not apply to evidence of facts and circumstances which, though affecting a transaction, constitute no part of it. This is a shorthand, and yet adequate, rendition of the rule declared in Miller v. Cannon. In Holcomb v. Holcomb, 95 N.Y. 325, it is said that:

"Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition, or language of another. *** It must appear that the interview or transaction sought to be excluded was a personal one."

See Heyne v. Doerfler, 124 N.Y. 505, 26 N.E. 1044.

Ross v. Ross, 6 Hun (N.Y.) 182, containing substantially this definition, is quoted with approval in Duggar v. Pitts, 145 Ala. 358, 39 So. 905, 8 Ann.Cas. 146. And in Lerche v. Brasher, 104 N.Y. 157, 10 N.E. 58, where an attorney sued for compensation for services rendered, and the contract of employment was proved by evidence open to no criticism, the plaintiff was allowed by the Court of Appeals to have been competent to testify that he got the papers in the case from a firm of attorneys and went to Albany to prepare the case for the Court of Appeals, these being in the opinion of the court, "independent facts, in which the deceased was not personally a participator and which, if living, he could not, for that reason have contradicted." In Sullivan v. Latimer, 38 S.C. 158, 17 S.E. 701, "transaction" is said to imply mutuality--something done by both parties acting in concert, in which both take some part. In Belote v. O'Brian, 20 Fla. 126, the word "transaction" was defined to mean "the doing or performing of any business, the management of an affair, the adjustment of a dispute between parties by mutual agreement," and plaintiff was allowed to testify as to the value of articles furnished and labor performed for deceased as being wholly independent of any personal transactions or communications with the deceased. In some of the states the statute on this subject excludes evidence of "personal transactions" with the deceased whose estate is interested. With statutes so worded our statute is precisely assimilated by the definitions of this court. And in those states--

"the rule of the statute does not operate to close the mouth of a witness as to any matter of fact coming to his knowledge in any other way [than] through personal dealings with the deceased person, or communications made by the deceased to the witness in person. This is not only the language of the statute, but it is the thought of the cases. 'The theory of the law is to close the mouth of the living person as to a matter in which he had a part.' " Shetler v. Stewart, 133 Iowa, 320, 107 N.W. 310, 110 N.W. 582.

In that case the question was whether certain deeds of property in controversy had been delivered during the lifetime of the deceased grantor. A party in interest was allowed to testify in relation to his custody of the private papers of the deceased, including the deeds in question, during the lifetime of the latter. In Hutton v. Doxee, 116 Iowa, 13, 89 N.W. 79, where the plaintiff sued the estate of his father, deceased, on a count for damages growing out of the alleged failure of the deceased to perform a contract whereby he agreed, on consideration of services to be performed by plaintiff on a farm, that he would make to plaintiff a deed of the farm, plaintiff was allowed to testify that he had taken possession of the farm and worked it for a number of years, making improvements thereon, these facts not constituting personal transactions with the...