Haines v. Watts

55 N.J.L. 149 | N.J. | 1892

The opinion of the court was delivered by

Beasley, Chief Justice.

On the trial of this cause in the Circuit, the plaintiff offered himself as a witness to prove certain pertinent conversations, touching the matters in controversy, that had occurred between himself and the decedent, whose estate was represented by Watts, administrator, defendant. This proffer of testimony was rejected, on the ground it was inadmissible by force of the statutes of this state.

The principle asserted and enforced was, that as the defendant on the record was sued in a representative capacity, the plaintiff could not be permitted to testify as to any transaction with, or statement made by, defendant’s intestate.

Inasmuch as the rules of the common law, with respect to the admissibility of witnesses, have, in the main, been abrogated and superseded by legislative action, we must, in the solution of the problem before us, have recourse to the statutory regulations thus indicated.

The general legislative policy on this subject is plainly indicated in the series of laws that now stand on our statute bo'oks, and that policy is to remove almost all the incapacita-tions of witnesses which, in the ancient system, had prevailed. Thus, section 3 of the act concerning evidence declares that “ No person shall be disqualified as a witness in any suit or proceeding at law or in equity by reason of his or her interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his or her' credit; provided, nevertheless, that no party shall be sworn in any case where the opposite party is prohibited by any legal disability from being sworn as a witness, or either of the parties in a cause sue or are sued in a representative capacity, except as hereinafter mentioned.”

The exception here alluded to is stated in the following section, being section 4, in these words, viz.: “A party in a suit in a representative capacity may be admitted as a witness therein, and if called as a witness in his own behalf and admitted, the opposite party may in like manner be admitted as a witness.”

It is not perceived that there is the faintest obscurity in this adjustment. The legislative purpose is plain and the language is apt. At common law a witness was disqualified if he had any interest in the result of the suit, or if he stood •as a party to the record, and these disqualifications were abolished except in two cases — -first, when the opposite party was under a legal disability as a witness, and, second, when either of the parties had sued or been sued in a representative capa■city, unless the latter was admitted as a witness at his own instance. The object of the exception arising from the presence of a representative party, obviously was to prevent the supposed unfairness of permitting a litigant to testify in his •own favor, with respect to the subject in litigation, when the lips of the other party in interest had been sealed by death. This was the entire effect of the proviso in sections 3 and 4. "That branch of the proviso which we are at present considering came in force only when there was a representative party •and a non-representative party on the record. The expression is, “ when either of the parties in a cause sue or are sued in •a representative capacity,” and it has no application whatever to the occasion when both plaintiff and defendant are representatives. ' Under any circumstances it would require an act •of great vigor to transmute the word “ either ” into “ both,” and certainly it should approach the line of the legally impossible when, by making the transmutation, there would be ■introduced into this statutory system to which it relates an incongruity so great as to approach the fantastic. Practitioners who, in the old times, took part in the trial of causes will (remember how impossible it used to be to assign any ground founded in right reason for the exclusion as a witness of a? personal representative who stood upon the record as one of’ the parties. Such a party obviously was without any personal interest in the result of the litigation. If his pleadings-were right, he was not, in most cases, liable in any event to-the costs, and it would seem that the only excuse for the rejection of his testimony that ever was given, or ever could be given, was the assertion, ita soriptum est. In fact, the disqualification of that class of witnesses is the least defensible-of any of the old rules of judicial evidence, and to reintroduce it would look like a mere anachronism. In this age that has-accomplished so much improvement in so many of our methods of procedure, it would be strange, indeed, to find a statute-that should at once declare that when two litigants should be-the parties to the suit upon the record, each, notwithstanding his interest, should have the right to testify in his own behalf,, but if such litigants were dead and their respective representatives were the parties to the record, that notwithstanding the-absence of all personal interest in the litigation neither of them could become a witness at his own instance.

It is deemed that, in these statutes under criticism, there is not the slightest indication of a purpose to produce such-a result. Where both parties appear on the record in a representative capacity, each is qualified as a witness in his own behalf, by force of the general provision contained in the third section of the act above quoted, to the effect that “ no-person shall be disqualified as a witness by reason of his-interest in the suit ” as a party or otherwise, and, as we have-seen, the subsequent circumscription of the rule so established is not applicable where both parties are representatives, but only where one party is such and the other is a non-representative.

With respect to the supplemental act of 1880, it is deemed sufficient to say that its pertinence to the present inquiry is not perceived. Its purpose was to narrow the effect of the proviso constructed by sections 3 and 4 of the act just construed. But as the present subject is unaffected according toifohe foregoing view, by sucli proviso we can, on the present ■occasion, have no concern with this later act modifying it.

The result, that it was error in law to refuse to admit this •administratrix as a witness at the trial of the cause, and the judgment be therefore reversed and a venire de novo issue.

For affirmance — Reed, Clement. 2.

' For reversal — The Chancellor, Chiee Justice, Dixon, •Garrison, Magie, Bogert, Brown, Smith. 8.