Williams v. Moore

• Decision Date: 20 May 1918
• Docket Number: No. 12670.,12670.
• Parties: WILLIAMS v. MOORE.
• Court: Missouri Court of Appeals

203 S.W. 824

WILLIAMS v. MOORE.

No. 12670.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Florence Williams against James H. Moore. From a judgment for plaintiff, defendant appeals. Affirmed.

F. W. Ashby and Paul D. Kitt, both of Chillicothe, for appellant. F. Sheetz, of Chillicothe, for respondent.

ELLISON, P. J.

This action is replevin for two horses said to have belonged to D. H. Williams, deceased. Plaintiff is his widow and administratrix of his estate. The judgment in the trial court was for plaintiff.

A short time before the death of Williams he wrote defendant a note, requesting him to pay plaintiff some money on the horses. Plaintiff called on defendant for the money. The trial court permitted her to testify to the conversation she then had with defendant as to what he had earned with the horses that week, and also to admissions he made to her. Defendant then offered himself as a witness in his defense, and he was not allowed to testify, on the ground that the other party to the contract concerning the horses was dead. Exceptions taken to these rulings are the questions presented here. Defendant's theory is substantially this: That plaintiff, being at the time the wife of deceased, was not a competent witness, and that she was not the agent of her husband within the meaning of the statute. But, if she was his agent, then defendant was competent, since the other party (plaintiff) was alive and able to testify against defendant. The statute as to witnesses, sections 6354 and 6359, R. S. 1909, are involved.

We answer defendant's points in this way: Plaintiff was not offered as agent of deceased in his lifetime. It was not necessary that she should be an agent. At common law the husband or wife could not testify for or against the other, and, though the relationship was dissolved, neither could be a witness as to any confidential communications between them, before it was dissolved. The statute (section 6359, R. S. 1909) relieves the wife of disability in a restricted way in actions, first, on policies of insurance; second, actions against carriers; and, third, in matters of business transactions when the transaction was had and conducted by such married woman as agent of her husband. The first two do not cover the present case and there is no necessity, or room, for the application of the third; for in such instances as that the former wife did not need the enabling aid of the statute, for the widow was competent at common law. The widow is not the wife, and therefore mat, at...