IN RE ESTATE OF HERBERT G. MUELLER, DECEASED. MERLE H. FINCHAM, JR., BY MERLE H. FINCHAM, SR., HIS FATHER AND NEXT FRIEND, APPELLANT, V. WILBERT L. MUELLER, ADMINISTRATOR OF THE ESTATE OF HERBERT G. MUELLER, DECEASED, APPELLEE.
No. 34304
Supreme Court of Nebraska
April 4, 1958
89 N.W.2d 137 | 166 Neb. 376
AFFIRMED.
MESSMORE, J., not participating.
Richards, Yost & Schafersman, for appellant.
Spear, Lamme & Simmons, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an appeal from the district court for Dodge County. The cause of action appealed had its origin in the county court of Dodge County when, on March 6, 1956, Merle H. Fincham, Sr., as next friend and father of Merle H. Fincham, Jr., filed a claim in his son‘s behalf against the estate of Herbert G. Mueller, deceased, then being probated therein, for damages which he claims Merle H. Fincham, Jr., suffered as a result of injuries received in an accident which is it claimed was caused by the negligent conduct of Herbert G. Mueller. The county court disallowed the claim and an appeal was taken therefrom to the district court for Dodge County. A trial was had and, at the conclusion of plaintiff‘s (claimant‘s) evidence, the trial court sustained defendant‘s motion for a directed verdict and dismissed plaintiff‘s petition. Plaintiff thereupon filed
The basic facts as to the accident in which Merle H. Fincham, Jr., whom we shall hereinafter refеr to as the son, was injured are not in dispute. The accident happened about 12:05 p.m. on Saturday, October 29, 1955, in a county road intersection located about 6 1/2 miles north and slightly west of Ames, Nebraska. At the time of the accident Merle H. Fincham, Sr., whom we shall hereinafter refer to as the father, was driving his 1955 Chevrolet station wagon with his son, who was then 8 years of age, as his guest. He was driving from Ames, Nebraska, to Snyder, Nebraska, on business and, at the time, was proceeding in a northerly direction. At this same time Herbert G. Mueller, whom we shall hereinafter refer to as deсedent, was driving his 1954 Chevrolet sedan in an easterly direction toward the intersection wherein the accident occurred. The traveled portion of both the east-west and north-south roads were graveled to a width of some 18 to 20 feet, travel being generally down the center of the graveled part thereof. At the intersection, and for a distance of some 100 to 150 feet to the west and south thereof, the road was quite level, however, further on it sloped downgrade to the south and upgrade to the west. At the southwest corner of the interseсtion, and extending to the west therefrom, were trees, bushes, and grass. The trees and bushes still carried their foliage. These trees, bushes, and grass came fairly close to the southwest corner and, because thereof, substantially obstructed the vision of the drivers of cars coming from either the west or south to see cars coming toward the intersection on the other of these two roads. The weather was cold, windy, and somewhat cloudy, but the road was dry. The debris from the impact of the car and station wagon, which consisted of chrome from the grille аnd glass from the parking lights and headlights of the station
As a basis for recovery it is claimed that decedent was negligent in the following respеcts and that such conduct on his part was the proximate cause of the accident and the resulting injuries to the son, to wit:
- In driving his car at a high and dangerous rate of speed and at a rate of speed greater than was reasonable and proper and not having any regard for the traffic and conditions of the road, to-wit: 60 miles per hour.
- In failing to have his car under proper control.
- In failing to keep a proper look-out for other traffic upon said roads and in particular, for traffic to his right at the intersecting County road.
- In failing to yield the right-of-way to the automobile in which this plаintiff was riding, said automobile being on his right.
- In failing to yield the right-of-way to the automobile in which this plaintiff was riding, the same being the first in said intersection.
- In failing to apply his brakes in time to avoid
colliding with the automobile in which the plaintiff was riding.”
There is no question here of imputed negligence as the son was riding as a guest of his father.
There are three questions raised by appellant: First, did the trial court err in holding that the father and next friend had a direct legal interest in the suit within the meaning of
It is apparent that the trial court applied
In Kleffel v. Bullock, 8 Neb. 336, 1 N. W. 250 (1879), we held:
“One who has a direct legal interest in the result of a cause, in which the adverse party is administrator of a deceased person, is not a competent witness therein; liability for the costs of the action is such an interest.” Ransom v. Schmela, 13 Neb. 73, 12 N. W. 926 (1882). See, also, Smith v. Perry, 52 Neb. 738, 73 N. W. 282 (1897); In re Estate of Jelinek, 146 Neb. 452, 20 N. W. 2d 325 (1945).
In Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949 (1901), we quoted with approval the following from Kroh v. Heins, 48 Neb. 691, 67 N. W. 771 (1896), that: “A direct legal interest in the event of an aсtion disqualifies a witness from testifying to transactions or conversations with the deceased, whether such interest be great or small.”
Under these holdings it becomes self evident that the father, being liable for the costs, had such a direct legal interest in the result of the action as to bring him within the provisions of
It is further contended that the last sentence of
In addition to the exceptions contained in
It will be noted, insofar as here material, that our statute relates itself to “any transaction * * * had between the deceased person and the witness.” We said, in Wilson v. Wilson, 83 Neb. 562, 120 N. W. 147 (1909), that: “The word ‘transaction,’ as used in this section, embraces every variety of affairs, the subject of negotiations, actions, or contracts between the parties.”
Black‘s Law Dictionary (3rd Ed.), p. 1747, as it relates to this subject, defines the word “transaction” as follows: “A ‘transaction’ between a witness and a decedent, within statutory provisions excluding evidence of such transactions, embraces every variety of affairs which can form the subject of negotiations, interviews, or actions between two persons, and includes every method by which one person can derive impressions or information from the conduct, condition, or language of another.”
And in VanMeter v. Goldfarb, supra, quoting from Barnett‘s Admr. v. Brand, 165 Ky. 616, 177 S. W. 461 (1915), the court said: ” ‘The word “transaction” as used in the statute relating to the admissibility of evidence of transactions or communications with deceased persons, has often received judicial interpretation, and is held to mean every variеty of affairs which forms the subject of negotiations or actions between the parties.’ ” See, also, Krause v. Emmons, supra; Maciejczak v. Bartell, supra. As stated in Krause v. Emmons, supra: “In general terms a transaction, within the terms of the statute, may be said to be an occurrence or action of which both decedent and the other party had knowledge, and to which the decedent if living would be equally
Bearing in mind this definition of “transaction,” courts generally hold that statutes, such as ours, apply to tort actions as well as those arising out of contract. See, Maciejczak v. Bartell, supra; Newman v. Tipton, supra; Strode v. Dyer, supra; Hallowach v. Priest, supra; Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63 (1932); Boyd v. Williams, supra; Wright v. Wilson, supra; 3 Jones on Evidence (4th Ed.), § 774a, p. 1412; 97 C. J. S., Witnesses, § 133a, p. 564; Annotation, 36 A. L. R. 959. As stated in Hallowach v. Priest, supra: “The statute makes no distinction between actions of contract and actions of tort. Nor do we think there is any distinction in reason. The statutory policy that living parties should not be permitted to tell their stories when the lips of adverse parties are sealed by death applies with equal force to torts and contracts. In torts, as in contracts, all the parties ordinarily are cognizant of the circumstances attending the tort. And if by reason of death some of them cannot testify, the others should not. That is the policy of the statute.”
We said in Nelson v. Janssen, 144 Neb. 811, 14 N. W. 2d 662 (1944), that: “A transаction or conversation, within the meaning of the statute, is an action participated in by witness and decedent and to which the decedent could testify of his own personal knowledge, if alive.” See, also, In re Estate of House, 145 Neb. 866, 18 N. W. 2d 500, 159 A. L. R. 401 (1945); Hlavaty v. Blair, 101 Neb. 414, 163 N. W. 330 (1917). It would, of course, have no application to independent acts performed in which decedent did not participate and to which, because thereof, he could not have testified of his personal knowledge. Bosteder v. Duling, 115 Neb. 557, 213 N. W. 809 (1927). See, also, Newman v. Tipton, supra.
While the question here presented has not been passed on by this court it has received the attentiоn of numerous other state and federal courts. There are apparently three viewpoints as to the effect of such a statute under
And as stated in Miller v. Walsh‘s Admx., supra: “The speed and movement of the truck, the sounding of the horn, and all that Gentner observed and did, as well as thе movements of the deceased, were so closely related to, and inseparably connected with, the accident as to bring them within the knowledge or observation of the deceased, make them a necessary part of the accident, and thus constitute a transaction with the deceased. As the offered evidence concerned a transaction with the deceased, there can be no doubt that, under the Code, Gentner, who was a party defendant, was not a competent witness on his own behalf.”
Footnote 21, p. 619, to Wright v. Wilson, supra, quotes and states as follows: “2 Wigmore on Evidence, 3rd Ed., § 578 ‘The scope of this modern rule excludes the testimony of the survivor of a transaction with a decedent, when offered against the latter‘s estate.’ The note
There are some cases that hold the survivor is permitted to testify as to his own actions but not as to those of the decedent. See, Kilmer v. Gustason, 211 F. 2d 781 (5th Cir. 1954); U. S. A. C. Transport v. Corley, 202 F. 2d 8 (5th Cir. 1953); McCarthy v. Woolston, 210 App. Div. 152, 205 N. Y. S. 507 (1924). We can see no logical reason for such a holding for if the factual situation brings it within the statute then the statute necessarily excludes all of the testimony relating thereto.
There is a third view to the effect that the survivor can testify both as to his own actions and those of the decedent. See Rankin v. Morgan, 193 Ark. 751, 102 S. W. 2d 552 (1937). Of the cases cited by the parties under this holding we have found only this one to be squarely in point on both fact and statute. It holds that: “A collision and incidents connected therewith are not transactions with the testator or intestate as the case may be.” It is significant to note that the opinion recites: “The parties have favored us only to the extent that they have stated the issue without furnishing citatiоns to authorities supporting their respective contentions.” It is apparent that the court did not make any research therefor as the opinion cites none of the numerous cases of other jurisdictions that have dealt with the question.
We have come to the conclusion that the factual situation here presented is a “transaction” within the meaning of
We have not overlooked certain cases cited by the pаrties such as Turbot v. Repp, 247 Iowa 69, 72 N. W. 2d 565 (1955); Shaneybrook v. Blizzard, supra; Krantz v. Krantz, 211 Wis. 249, 248 N. W. 155 (1933); Boyd v. Williams, supra; Davis v. Pearson, 220 N. C. 163, 16 S. E. 2d 655 (1941); Strode v. Dyer, supra. In these cases the courts are divided on the question of whether or not a factual situation,
In this respect we have not overlooked the following language originally appearing in Harnett v. Holdrege, 5 Neb. (Unoff.) 114, 97 N. W. 443 (1903), and subsequently quoted in In re Estate of House, supra: “Under our present statute, to require the evidence of an interested party to be excluded, it must appear that the testimony relates to something of a personal nature passing between the witness and the deceased.” However, a careful analysis of these two opinions discloses that this statement is not the basis for the decision therein arrived at on this issue and therefore merely dicta.
In Harnett v. Holdrege, supra, the action involved was on the two notes brought by the trustee of a trust created by the last will and testament of Hannah S. Allen, deceased. Service was had on three of the defendants charged as being indorsers on these notes. They appeared therein and answered, alleging the notes had been materially altered after they had signed them as indorsers. At the trial two of these indorsers, Foss and Dewesse, were permitted to testify as to the condition of the notes at the time they indorsed them, which was in the absence of the deceased. On appeal the question was raised as to whether or not this evidence was
In In re Estate of House, supra, a claim was filed against the estate of Merton E. House, deceased, based on a promissory note. Claimant was permitted to identify the signature of the deceased, having qualified as being familiar therewith. Passing on the question of the competency thereof, in view of the statute, the court held: “A majority of the courts hold generally that an interested party is competent, if otherwise qualified, to testify to the genuineness of the signature or handwriting of a deceased person, notwithstanding the statutory rule excluding transactions or conversations with a decedent, since such testimony involves a matter of opinion and not a personal transaction or cоnversation between the witness and decedent.”
In In re Estate of House, supra, the author cites the rule here applicable and which we have hereinbefore set forth. It is as follows: “A transaction or conversation within the meaning of section 7894, Rev. St. 1913, (now
It is interesting to note that originally our statute was much broader in its scope. Laws 1866, part II, § 329, p. 449. Therein it provided that: “* * * nor shall any person having a direct legal interest in the result of any civil cause or proceeding, be a competent witness therein, when the adverse party is an executor, administrator or legal representative of a deceased person.” Our present statute, which materially limited the former code provision, was enacted by the Legislature in 1883. See Laws 1883, c. 83, § 1, p. 328. The effect of the сhange is stated in Sharmer v. McIntosh, 43 Neb. 509, 61 N. W. 727 (1895), as follows: “But this section was amended (Session Laws, 1883, ch. 83,) so as not to render the person interested adversely to the representative of the deceased person incompetent as a witness, but to render merely his testimony as to transactions and conversations with the deceased incompetent as evidence, with the exceptions provided in the act.”
This is a subject the Legislature has dealt with from the state‘s very beginning. If the present statute is still too severe it can be dealt with by the Legislature and made more liberal but we do not think that should be done by judicial opinion for such would be judicial legislation. In some states the legislatures have done so. See, McCormick on Evidence, § 65, p. 143; Andreades v. McMillan, supra. As stated in Strode v. Dyer, supra: “Whatever may be our views on the policy of the West Virginia statute as interpreted herein, we believe the change, if any, should be made by the legislature.” And in Wright v. Wilson, supra, the court speaking on the same question, said: “The rule excluding a survivor‘s testimony seems to stand in the almost unique situation of being condemned by all of the modern writers on the law of evidence. It is said to be as unsound and undesirable аs the rule excluding the testimony of parties of which the survivor rule is a part. But we believe
Having come to the conсlusion that the father should not have been permitted to testify as to either his own actions or those of the decedent as it relates to their vehicles immediately before and at the time of the accident the question arises, is the trial court‘s order directing a verdict for the appellee, and dismissing appellant‘s petition, in error?
In considering this question the appellant is entitled to the benefit of the following principles:
“A motion for a directed verdict or its equivalent must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and such party is entitled to have every controverted fact resolved in his favor and have the benefit of every inference that can reasonably be deduced from the evidence.” Behrens v. Gottula, 160 Neb. 103, 69 N. W. 2d 384 (1955).
“Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligеnt act complained of.” Davis v. Dennert, 162 Neb. 65, 75 N. W. 2d 112 (1956).
But, of course, negligence is never presumed. The burden of proving negligence is on the party alleging it and merely establishing that an accident happened does not prove it. Wolcott v. Drake, 162 Neb. 56, 75 N. W. 2d 107 (1956). Nor can a verdict be based on conjecture or
In addition to the factual situation already set forth the only addition that need be added thereto is that the state trooper, who was at the scene of the accident very shortly after it happened, testified he saw skid marks in the gravel made by the tires of the station wagon extending back from the rear thereof south for a distance of some 17 to 18 feet. He testified the tracks started at the rear end thereof from the point where the station wagon hit the car. He also testified he could find none to the west of the point of impact, that being the direction from which the sedan had come.
We turn then to the six specifications of negligence alleged by the appellant, which we have hereinbefore set out. There is no evidence in the record from which the speed of decedent‘s car, or how it was operated, can be ascertained. Consequently there is no evidence to support specifications (a), (b), (c), and (f). Specifications (d) and (e) deal with appellant‘s alleged claim of right-of-way and the rules applicable thereto as set forth in Wolfe v. Mendel, 165 Neb. 16, 84 N. W. 2d 109 (1957). However, appellant did not necessarily have the right-of-way merely because he approached the intersection from the right for if decedent entered the intersection first then he would have had the right-of-way. See Long v. Whalen, 160 Neb. 813, 71 N. W. 2d 496 (1955). To permit the jury, under the factual situation presented, to decide who had the right-of-way would require it to guess in regard thereto as there is no evidence on which to properly base a conclusion on that issue. The same
In view of what we have herein held we come to the conclusion that the trial court‘s ruling, holding that appellant has not made a case, is correct. We therefore affirm the action of the trial court in dismissing appellant‘s petition.
AFFIRMED.
CARTER, J., dissenting.
I disagree with that part of the majority opinion holding that the conduct of the operators of motor vehicles prior to a collisiоn, the location and speed of such vehicles, and the physical facts existing at the scene of an accident, constitute a transaction within the meaning of the dead man‘s statute.
The word transaction as used in the dead man‘s statute means a personal transaction with the deceased, as this court has heretofore indicated. See, Harnett v. Holdrege, supra; Fitch v. Martin, 74 Neb. 538, 104 N. W. 1072 (1905); In re Estate of Baker, 144 Neb. 797, 14 N. W. 2d 585, 155 A. L. R. 950 (1944); In re Estate of House, supra. It means a transaction in which each is an active participant; a mutual transaction between the deceased and the surviving party. It does not prohibit the survivor from describing an event оr physical situation, or the movement or actions of a deceased person, quite independent and apart, and in no way connected with, or prompted or influenced by reason of, the conduct of the party testifying. Thus construed, the dead man‘s statute does not bar the testimony of the survivor as to his observation and description of the physical situation, and the movements and actions of the participants at the time of the accident.
The majority places a broad and unlimited meaning on the word transaction. The dead man‘s statute,
CHAPPELL, J., concurs in this dissent.