Pollock v. KellyPollock v. Kelly
Appellee, as sole heir and beneficiary of the Estate of Katherine A. Kelly, deceased, brought suit on a promissory note given by appellant to appellee‘s decedent prior to her death. From a summary final judgment in favor of appellee this appeal is taken. It is contended that the pleadings, affidavits and exhibits on file before the court present a genuine issue of a material fact which should properly be resolved only by a jury on a trial of the cause. Reversal of the summary final judgment is sought.
Appellee‘s complaint is in the usual form alleging that the promissory note, a copy of which is annexed as plaintiff‘s exhibit, was executed by defendant and delivered to Katherine A. Kelly prior to her death whereby defendant promised to pay to the decedent on the date stipulated in the note the sum of $2,500, together with interest. It is further alleged that defendant owes plaintiff the entire amount of the note with interest from its due date, together with attorney‘s fees, for which judgment is prayed.
By his answer defendant admits the execution and delivery of the note in question, but denied that he was indebted thereon either to the decedent at the time of her death, or is now indebted to the plaintiff in the cause. As additional defenses defendant alleges payment, accord and satisfaction and release.
In support of her motion for summary judgment plaintiff filed her affidavit which merely reiterates the allegations of her complaint, and also filed affidavits of various attorneys testifying as to what is a reasonable fee to be paid plaintiff‘s attorney for his services.
In opposition to the motion defendant filed separate affidavits executed by him and his wife. The affidavit executed by defendant‘s wife averred that although she was the wife of defendant, she was not a party to the cause nor interested in the event thereof. This affidavit acknowledged the execution and delivery of the promissory note by defendant to the decedent, but averred that the affiant wife was not now nor ever had been obligated or indebted to either the decedent or the plaintiff in the cause. It is further averred that the affiant, at the request and solely for the benefit of defendant, paid certain sums of money to the decedent during her lifetime to be applied on the indebtedness evidenced
Upon consideration of the foregoing proofs submitted by defendant the trial judge entered a summary final judgment in which he found that there was no genuine issue of any material fact and that plaintiff was entitled to judgment as a matter of law. The court accepted the proofs of payment submitted by defendant to the extent of $1800 as evidenced by the canceled checks attached to the affidavit filed by defendant‘s wife, but further found that there remained unpaid of the indebtedness evidenced by the note the principal sum of $700. Judgment was therefore awarded plaintiff for the balance of the principal found to be due, together with interest and attorney‘s fees, in the total sum of $1,276.61.
The rule of civil procedure under which the summary judgment in this case was entered provides that such judgment or decree may be rendered by the court if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.1 Proceedings for a summary judgment or decree may never be used as a substitute for a trial if from the evidence before the court there appears to be a genuine issue of some material fact which must be established in order for either party to prevail.2 Even though the material facts are uncontroverted a summary judgment may not be proper if the evidence is lawfully susceptible to two or more conflicting inferences.3
The question here presented is whether the pleadings, depositions, affidavits and other evidence on file before the court raised a genuine issue of a material fact with respect to the issues formed by the pleadings filed in the cause.
The affidavit filed by plaintiff in support of her motion for summary judgment averred the execution and delivery of the note sued upon and specifically asserted that the entire principal amount of the note was due and unpaid, together with interest thereon from the date of execution. The
The summary judgment entered by the trial court contains no findings but recites the bare conclusion that there is no genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law. The record is therefore silent as to what theory of law the trial judge relied upon in rejecting the proof tendered by appellant purporting to show payment in full of the note sued upon.
In support of the judgment appealed appellee contends that the evidence submitted by appellant purporting to show payment of that part of the indebtedness over and above the $1800 represented by the canceled checks was incompetent under the so-called Dead Man‘s Statute, and would not be admissible during the trial. Our attention is invited to that portion of the rule which requires that supporting and opposing affidavits filed in connection with a motion for summary judgment shall set forth only such facts as would be admissible in evidence.4 She contends, and properly so, that if the evidence rejected by the trial judge was incompetent and would be inadmissible during the trial, the trial judge was correct in disregarding it in his consideration of the motion for summary judgment.5
The Dead Man‘s Statute6 was enacted for the purpose of relieving against the harsh common law rule which disqualified
Appellee seems to concede that the proof submitted in the form of the affidavit by appellant‘s wife would be sufficient, if admissible, to create an issue of fact in support of the defenses interposed. She contends, however, that appellant‘s wife is disqualified from offering testimony with respect to the payments made and the goods and services furnished by her to the decedent during her lifetime to be credited on the note for the reason that these are transactions or communications with the decedent and the wife is an interested party to this cause within the disqualifying proviso of the statute. In Fields9 our Supreme Court held that the admissibility of testimony to be offered by a witness under the Dead Man‘s Statute will not be governed by the blood relationship existing between the witness and one of the parties to the cause. And in Farrington it was held that an interest simply in the question involved will not disqualify under the proviso of the statute. The disqualifying interest of the witness must be in the event of the cause itself, and not in the question to be decided.
It is appellee‘s position that the rule to be applied to the testimony submitted by appellant‘s wife on the motion for summary judgment is controlled by the decision of the Supreme Court in Jensen. In that case a mother and son relationship existed between the plaintiff and her principal witness. In a suit brought by the mother the son attempted to testify as to a transaction or communication had between his plaintiff mother and the decedent against whose estate the suit was brought. The son denied that he had any pecuniary interest in the event of the cause instituted by his mother. The facts in that case reveal that the son was also maintaining a suit against the estate of the same decedent then being sued by his mother. It was but a single transaction out of which the causes of action instituted by both the mother and son had arisen.
We revert to the affidavit filed by the wife in opposition to appellee‘s motion for summary judgment which recites that she is not a party to the cause nor interested in the event thereof. Her testimony with respect to the payments made to the decedent reveal that she was acting at all times at the request of her appellant husband, and that all payments made by her and goods and services furnished to decedent were for the husband‘s benefit to be applied as credits on the indebtedness evidenced by the note sued upon. We are of the view that the rule applicable to the facts in this case is controlled by the decision of the Supreme Court in Farrington, supra. In that case the decedent persuaded Farrington and his wife to leave their home in the north and move to St. Petersburg for the purpose of caring for the decedent during the remainder of his lifetime. As consideration for the services to be rendered by both the husband and wife the decedent agreed to continue in effect a certain trust provision in his will which would benefit both the Farringtons after his death. The Farringtons performed their part of the contract until it was terminated without just cause by the decedent. Farrington then instituted in his name alone a common law action to recover damages for an alleged breach of the parol contract of employment. During the pendency of the cause the decedent died and his personal representative was substituted as party defendant. It developed that decedent had revoked the trust provision in his will which would have benefited the Farringtons. At the trial Farrington‘s wife was called as a witness for the purpose of establishing the parol contract entered into between Farrington and the decedent. Objection was interposed on the ground that she was an interested witness and her testimony was inadmissible under the Dead Man‘s Statute. The objection was sustained and verdict directed in favor of decedent‘s personal representative. On appeal the judgment was reversed and the cause remanded for further proceedings. The Supreme Court held under the facts in that case that Farrington‘s wife was not a party to the cause and was not interested in the event thereof within the disqualifying proviso of the statute. The mere fact that she was the plaintiff‘s wife and might indirectly enjoy the fruits of a judgment rendered in his behalf did not disqualify her from testifying with regard to the transaction and communication had between her husband and the decedent during the latter‘s lifetime.
Appellee emphasizes that the checks given to decedent as payments on the note were all issued and signed by appellant‘s wife. The goods and services furnished decedent, the value of which was by agreement to be credited on the indebtedness, were likewise furnished by appellant‘s wife. From these facts appellee reasons that the wife thereby became interested in the event of the action within the disqualifying provision of the statute. With this contention we cannot agree. It ignores the uncontroverted statement of the wife that the payments made and services furnished by her to the decedent were all at the request and for the account of her husband, the defendant. Appellant‘s wife is no doubt interested in the question involved, but as said by the Supreme Court in Farrington, supra, this is not sufficient to disqualify the witness absent a showing of interest in the event of the cause itself. We therefore find and hold that the affidavit of appellant‘s wife
For the foregoing reasons the judgment appealed is reversed and the cause remanded for further proceedings.
Reversed.
STURGIS and CARROLL, DONALD, JJ., concur.