107 Ark. 153 | Ark. | 1913
(after stating the facts). The testimony of witness Eeed and others as to the declarations made by Kizer Allison that the defendant' had executed the note in his favor and that he was the owner of it was not competent evidence. The declarations were in the nature of a narrative of a past occurrence and can not be received as proof of the existence of such occurrence. These declarations were not in disparagement of his title but were self-serving declarations merely. They were offered by the plaintiff to strengthen, her claim. Decedent’s declarations were no more evidence for the plaintiff here than they would have been for him in case he had lived and been the plaintiff in this action, and it is apparent that he could not have proved his own mere declarations to third parties of his ownership in order to establish his title to the note against the defendant. The testimony was permitted to be given to the jury as competent and proper for their consideration. If the testimony was believed, it could not fail to have a prejudicial effect against the defendant and to weaken the defense upon which he was insisting. Therefore, the admission of such evidence was prejudicial to the rights of the defendant. Brown, Admr. v. Kenyon, (Ind.) 9 N. E. 283; Bedell v. Scoggins, (Cal.) 40 Pac. 954; Royston v. Royston, Admr. 29 Ga. 82; Gibson v. Gibson, 15 Ill. App. 328; Wilson v. Wilson, 6 Mich. 9; Ward v. Ward, 37 Mich. 253; Marcy v. Barnes, 16 Gray, Mass. 161.
Counsel for defendant insists that the court erred in refusing to permit the wife of the defendant to testify that her husband did not execute the note in question. There was no error in this. Under section 3095, Kirby’s Digest, a wife is incompetent to testify for her husband except in regard to some business transacted by her for him as his agent. The wife in this case was not the agent for her husband and the excluded testimony was not in reference to any business transaction done by her as his agent. Taylor v. McClintock, 87 Ark. 243, and cases cited. St. L., I. M. & S. Ry. Co. v. Courtney, 77 Ark. 431.
Counsel for the defendant also assigns as error the action of the court in refusing and giving instructions. The theory of the plaintiff was that the defendant executed the note in favor of her father and that her father left the note with his sister, who was the wife of the defendant and that the note had never been paid. On the other hand the defendant denies that he ever executed the note. The plaintiff alleged that the note was in the possession of the defendant and that was denied. It thus became a material issue and the burden of proof was on the plaintiff to establish it. Norris v. Kellogg, 7 Ark. 112; Williams v. Cubage, 36 Ark. 307; Fields v. Anderson, 55 Ark. 546; McLain v. Duncan, 57 Ark. 49.
Inasmuch as the judgment must be reversed for the error in admitting the testimony indicated above, it will not be necessary to take up the instructions and discuss them in . detail. We deem it sufficient to say that the court had in mind the principles of law just announced in giving instructions to the jury. The instructions given were inartistically drawn in that it might be inferred from them that there was an indication on the part of the court that the note in question had been executed, when this was the principal issue to be determined by the jury. We do not mean to hold that the instructions as given are erroneous, but call attention to this defect in their verbiage in order that it may be obviated at the next trial.
For the error in admitting the testimony of the declarations of Kizer Allison in regard to his ownership of the note, the judgment must be reversed and the cause will be remanded for a new trial.
