Weed v. Clark

• Decision Date: 21 February 1920
• Parties: WEED v. CLARK.
• Court: Maine Supreme Court

109 A. 8

WEED

v. CLARK.

Supreme Judicial Court of Maine.

Feb. 21, 1920.

Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by Margaret E. Weed against G. Percy Clark, administrator. A verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, WILSON, and DEASY, JJ.

J. B. Merrill, of Bangor, for plaintiff. D. F. Snow, of Bangor, for defendant.

DUNN, J. Defendant's decedent, one Herbert M. Clark, lived in Holden. For not far from 25 years plaintiff was his houskeeper. The day before he died she left his home to go to Patten for a visit. On her way there* she directed a Bangor savings bank to draw out of her account and pay to him the sum of $150, which it did by check to his order. He deposited the check to his own credit in another bank. In usual course this check was paid by the bank on which it was drawn. Some six months after her former employer's death plaintiff tiled against his estate a claim for wages for her work for nearly 5 years, aggregating $729, and also for money averred to have been loaned to him by her; the date and the amount of the charge for the loan corresponding respectively to those of the check. Payment of the claim never was made by the administrator. Suit followed, and the case was brought to trial. So far as it related to the items for work, the claim was not otherwise substantiated than by testimony of witnesses to the effect that plaintiff had been employed about decedent's home. For money lent there was only evidence to prove the transaction of the check. The administrator defendant did not testify. Plaintiff asked that she herself might be allowed to give testimony that entries in an "account book" of hers were in the handwriting of decedent, "and were in the nature of an admission" by the latter during his lifetime of an amount that he owed her, which request the trial court, after inspecting the book, declined to grant. Nor was plaintiff permitted to give evidence in contradiction of witnesses imputing to her the making of statements, while deceased was living, highly inconsistent with her attitude as plaintiff. To these rulings of the justice presiding, and as well to his charge to the jury, at the conclusion of the testimony, to return a verdict for defendant, exceptions have been argued.

Save where there are statutory provisions differently, in all cases in which an executor, administrator, or other legal representative of a deceased person is a party, the rules of the common law control the competency of witnesses and evidence. R. S. c. 87, § 117. Among other modifications is this: If a personal representative prosecuting or defending on his own initiative offer himself as a witness, and he testify for the estate as to that which occurred in his decedent's lifetime, then, with regard solely to what he testified to, the adverse party, if he have knowledge otherwise admissible, may testify. Id. cl. 2. As a litigant, the personal representative has all the rights his decedent would have had if living. And, besides, he alone holds the key which will open the door and allow his adversary to enter and testify regarding facts that happened before the dead man died. Unless the door be opened by the personal representative, the other party may not testify as to what happened before decedent's death, not even to interpret that which is hidden from or doubtful to ordinary and easy perception and intelligence, or is only implied in a statement which he himself made while the other lived. Sherman v. Hall, 89 Me. 411, 36 Atl. 626. For greater reason he may not testify in explanation, unless and until the personal representative opposing bid him do so, when the asserted admission was by his adversary's decedent. Evidence other than testimony by the living party must be relied upon to establish identity of the admission, and to explain or control its legal and natural import. Berry v. Stevens. 69 Me. 290. It will be noted that plaintiff did not offer an original book of entries of business transactions, regularly kept, showing of itself a charge against decedent's estate, with her suppletory oath to the entries therein made, which the inhibitory rule does not forbid. Silver v. Worcester, 72 Me. 322, 329. Her grievance is, not that the "account book" was admissible, by suppletory oath, as an authentic register of the affairs of her vocation, in evidence of performance of personal services for payment of which she sued, but rather that she was ruled incompetent to bear witness that a particular entry in the book was "a statement of the amount due the plaintiff upon a certain date." Indeed, the record evinces that plaintiff's attorney virtually said to the court the book would be valueless in evidence unaccompanied by the proffered explanatory testimony.

It is a well-established rule of procedure in this state, resting for foundation on the axiomatic principle that prevention is better than cure, that a verdict may and should he directed for either party when, giving the evidence introduced full probative value, it is plain that a contrary verdict could not be sustained. Heath v....