250 N.W. 574 | Minn. | 1933
Lead Opinion
1. There is involved in plaintiffs' proof of their asserted cause of action 2 Mason Minn. St. 1927, § 9817, as follows:
"It shall not be competent for any party to an action, or any person interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person relative to any matter at issue between the parties, unless the testimony of such deceased or insane person concerning such conversation or admission, given before his death or insanity, has been preserved, and can be produced in evidence by the opposite party, and then only in respect to the conversation or admission to which such testimony relates." *578
In many states the corresponding statute refers to transactions and communications with the decedent. 1 Wigmore, Ev. (2 ed.) § 488, pp. 865-911; 5 Jones, Ev. (2 ed.) § 2260.
The statute has proved a vexing one in its application. Its policy is frequently and forcibly assailed as not in furtherance of the ascertainment of the truth. 1 Wigmore, Ev. (2 ed.) § 578; 5 Jones, Ev. (2 ed.) § 2225; 35 Harv. L.Rev. 673-680; 38 Harv. L.Rev. 697; 30 Yale L. J. 593, 605; Morgan,Law of Evidence (Yale Univ. Press) 23-49. It is to be given a fair construction, but the construction is somewhat strictly against the exclusion of evidence. The general statutory rule and policy permits any person, including an interested party, to testify. 2 Mason Minn. St. 1927, § 9814. The rule of strict construction against the exclusion of otherwise competent testimony is illustrated in Chadwick v. Cornish,
2. The policy gave George the right to change the beneficiaries. He worked for his father and, with his wife and child, lived with his parents on a farm in Freeborn county. He was paid $50 per month. The insurance was taken by the parents in the name of George. They paid the premiums and were the beneficiaries. In November, 1930, the plaintiff Elizabeth Sievers asked for money from the defendants for Christmas shopping for both families. Her claim is that the defendants or one of them said that all she could have was $20 because the rest of George's wages was to be paid on the premium becoming due on the insurance. She repeated her claim a number of times without material variation, and the following fairly indicates the purport of it:
Q. "Tell us what the conversation was, had with Mr. and Mrs. Hans Sievers at that time.
A. "Well, I asked Mrs. Hans Sievers for our wages because Christmas was coming and I wanted the money for Christmas presents for her family and my family, and Mr. Sievers said that all I could have was $20 of the wages because the rest of the money was to be paid on the insurance coming due.
Q. "On your insurance?
A. "Yes, and I said if we are going to pay out our wages for insurance I want the insurance changed to our name, and Mr. Hans Sievers said we don't need to bother because he would certainly see that the baby and I would get the money if anything happened to George."
The theory of the plaintiffs is that George had the right to change the beneficiaries, and was about to do so and make the plaintiff Elizabeth, or her and their infant child, beneficiaries, and refrained from doing so because of the promise of the defendants that the *580 money would be paid to her or to her and her daughter if anything happened to him. He died in November, 1931. To maintain this claim the plaintiffs sought to prove a conversation had by Elizabeth with the defendants and to make her testimony, though she is an interested party, competent by excluding George, who was present, from it.
The plaintiffs claim that this testimony was competent within Thaden v. Bagan,
We hold that there was no competent evidence sustaining a verdict or judgment. All available evidence has been produced, and the case should be ended by judgment notwithstanding.
Order reversed.
Concurrence Opinion
I do not agree that the conversation between one of the plaintiffs and the defendants, although in the presence of the plaintiff Elizabeth's husband, since deceased, was incompetent as being evidence "of or concerning any conversation with, or admission of, a deceased * * * person relative to any matter at issue between the parties." The husband, as far as appears, said nothing and did nothing. The statute excluding evidence by an interested party of or concerning any conversation with or admission of a deceased person should not be extended beyond the reasonably clear application of the words used in the statute. Thaden v. Bagan,