Smilay v. Sage

8 N.W.2d 158 | Mich. | 1943

Maurice D. Smilay, plaintiff, brought suit against the administrator of the estate of Robert E. Sage, deceased. In the declaration it is alleged that defendant's decedent intentionally shot and wounded plaintiff with a loaded revolver. In his opening statement, counsel for plaintiff also claimed that decedent made an assault upon the plaintiff with a loaded revolver with the intention of shooting and wounding plaintiff and caused him large medical expenses, loss of earnings and much pain and suffering. At the trial plaintiff was asked by his counsel what happened at the time of the shooting at decedent's office; also, whether the decedent had been drinking at the time he shot plaintiff. Both these questions were objected to and excluded under the "dead man's statute" as being equally within the knowledge of the deceased. 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914). No other material testimony of the shooting was offered. The trial judge entered judgment in favor of defendant. Plaintiff appeals.

The statement of facts in plaintiff's brief sets forth many incidents which if true are not supported by any testimony whatsoever. Plaintiff claims that the "dead man's statute" should not be applied in an action where it is not positively shown that the facts testified to were equally within the knowledge of deceased. It is unnecessary to distinguish Noonan v. Volek,246 Mich. 377, or other cases relied upon by plaintiff for they are not pertinent. The nature of the questions was such that they directly called for answers of alleged facts that must have been within the knowledge of the deceased. Appellant claims, however, that decedent's mind had become dulled because of drink, and, therefore, his knowledge of facts could not have been equal to that of the appellant. Both the declaration and the opening statement of counsel were to the effect that decedent intentionally shot plaintiff. The statute does not call for some kind of psychological measurements of perception and intelligence so as to determine whether the knowledge of plaintiff and decedent was equal. The fact that plaintiff did have knowledge suffices. As Mr. Justice COOLEY said in Kimball v. Kimball, 16 Mich. 211, 215:

"The word `equally,' as employed in this section, does not relate to the degree of knowledge possessed by the parties, but is used in the sense of alike, to preclude the party's evidence where the facts to which he is called [to testify?] were known to both. The word equally is often used in this sense, and it cannot be employed in any other here, without leading to manifest absurdities."

Plaintiff calls attention to the case of Justin v. Ketcham,297 Mich. 592, 597, wherein we stated:

"It is a fundamental principle of law that persons wronged should not be deprived of redress."

We recently said in Fojtik v. Lawson, 303 Mich. 568, it has been questioned whether the "dead man's statute" has not a tendency to cause more injustice than it prevents, and that any change in the law must come from the legislature.

Judgment for defendant affirmed, with costs.

BOYLES, C.J., and CHANDLER, NORTH, STARR, WIEST, BUSHNELL, and SHARPE, JJ., concurred.