Opinion
No. 4100.
Decided April 26, 1952.
Where the administrator, defending separate actions for services alleged to have been performed for the decedent in his lifetime, did not elect to testify, the testimony of the plaintiffs in their own individual behalf concerning events as to which the defendant's intestate might have testified if living was properly excluded. An offer of testimony which is not obviously competent is properly rejected where it fails to bring to the notice of the Trial Court a contention of the party under which the testimony might be competent. The disqualification imposed by the statute (R.L., .c. 392, s. 25) is waived only by the election of the representative himself.
ACTIONS OF ASSUMPSIT, by husband and wife to recover for services alleged to have been rendered the defendant's intestate during her lifetime. Trial by jury. Verdict for the defendant in each action.
Early in the trial, counsel for the plaintiffs offered "statements made by the deceased and testified to by the plaintiffs; . . . requests for services by the deceased and testified to by the plaintiffs" and "the testimony of the plaintiff [to] various acts, deeds and services done by him or her as plaintiff for the deceased." The defendant did not elect to testify (R.L., c. 392, s. 25) at that stage of the proceedings and the court declined to compel an election. The plaintiffs thereupon sought admission of the testimony under R.L., c. 392, s. 26, as amended. Their counsel conceded that testimony of other witnesses would be presented as to statements made by the deceased so that no injustice would result from exclusion of like testimony by the plaintiffs, but sought a finding that injustice would be done by the exclusion of their testimony "as to what they did," advancing as the reason: "because it is something within the exclusive knowledge of the plaintiffs, there wasn't anyone else there at the time they did all of these things for the deceased."
Subject to the plaintiffs' exceptions the Trial Court excluded "any testimony by the plaintiff in this action in respect to facts which occurred in the lifetime of the deceased."
In addition to introducing such testimony of the plaintiffs as was thus permitted, the plaintiffs called five witnesses, and the deposition of a sixth witness was received as a part of their cases. Only the testimony of the plaintiffs appears in the record before us. The defendant called six witnesses, one of whom was his wife. Only the testimony of the wife is reported. At the conclusion of the defendant's case, the plaintiffs sought reconsideration by the Court of the ruling excluding the plaintiffs' testimony, on the theory that the defendant had "to all intents and purposes accomplished exactly the same thing as if they had called the administrator himself to the stand by calling his wife. . . . The defendants bring in the administrator's wife, closely related, closely interested in the outcome of this matter, he being the only heir as she testified to. . . . they were trying to use her in place of the administrator and now they have made that election, if the Court please, we say we ought to let the plaintiffs testify." The Court stated "for the record" that the administrator's wife "did not directly contradict the claims advanced by the Brodericks here that they performed services there," and declined subject to exception to modify the previous ruling except to the extent necessary to permit the plaintiff Sarah to testify concerning a note given by the plaintiffs which came into the possession of the defendant as administrator.
It appeared in the course of the trial that the defendant was the adopted son of a sister of the decedent, and the statement by plaintiffs' counsel that he was "the only heir" was not disputed.
It is found by the reserved case that the testimony of the defendant's wife related to facts which occurred during the lifetime of the deceased and were within the knowledge of the defendant, all of which he could have testified to himself.
All questions of law raised by the above mentioned exceptions together with the plaintiffs' exceptions to the denial of their motions for directed verdicts were reserved and transferred by Wheeler, J. Other facts appear in the opinion.
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the plaintiffs.
William H. Sleeper, Robert Shaw and Wayne J. Mullavey (Mr. Mullavey orally), for the defendant administrator.
Since the defendant administrator did not elect to testify, the testimony of each of the plaintiffs on his or her own behalf, concerning events as to which the defendant's intestate might have testified if living, was properly excluded. R.L., c. 392, s. 25; Berry v. McArdle, 62 N.H. 354. There was no evidence that the defendant's interest in the estate as an individual was such that his interest as administrator was nominal rather than real. Cf. Muir v. Bartlett, 78 N.H. 313. So far as appears, he here "defends in the right of the deceased." Reynolds v. Kenney, 87 N.H. 313, 314. Anno. 172 A.L.R. 714, 719.
The plaintiff's argument that the statute (s. 25, supra) imposes no testimonial disqualification upon the spouse of the adverse party so long as the spouse is not a party in interest is supported by settled law of this jurisdiction. White v. Poole, 74 N.H. 71; Chase v. Pitman, 69 N.H. 423. See Weston v. Elliott, 72 N.H. 433. As these cases indicate, the rule is not affected merely because the spouse is likewise an adverse party in a separate action to enforce independent rights. Thus the plaintiff William could be a competent witness in the action brought by the plaintiff Sarah and she could likewise be a competent witness in his action.
However, the record does not disclose that either plaintiff was offered as a witness for the other. The proposal that "the plaintiff" be permitted to testify to acts, deeds and services "done by him or her as plaintiff," as well as certain colloquy which followed, indicated rather that each plaintiff was offered as a witness in his or her own behalf. It was not asserted, and the Court was not called upon to assume, that either of them possessed the requisite personal knowledge to qualify as a witness in support of the claim of the other. The testimony, as offered, was properly excluded. R. L., c. 392, s. 25, supra. The language of the offer was "not calculated to bring [the plaintiff's] contention to the notice of the Trial Court." Marchand v. Company, 95 N.H. 422, 426. See also, Gardner v. Company, 79 N.H. 452, 457.
If "justice has not been done and a further hearing would be equitable" (R.L., c. 398, s. 1) because the scope of the offer made by plaintiffs' counsel was thought by him to be broader or more specific than it was, and through accident or mistake it failed to convey its full purpose to the Trial Court, the plaintiffs are free to seek a new trial by appropriate motion addressed to that court.
The exceptions to the refusal to permit the parties to testify by discretionary ruling under R.L., c. 392, s. 26, disclose no error which is open to correction here. Before the amendment of 1941 this section provided that a party "may be allowed to testify," when it "clearly appears to the court that injustice may be done without the testimony . . . and the ruling of the court, admitting or rejecting his testimony, may be excepted to and revised." P.L., c. 336, s. 28. As the latter provision was construed, an exception to such a ruling brought before the appellate court "questions of fact as well as those of law." Gosselin v. Griffin, 79 N.H. 510, 511; Simpson v. Gafney, 66 N.H. 261. It was settled by the decisions that a case of injustice was not established by a showing that the adverse party was the sole surviving witness to events within the knowledge of the decedent. Berry v. McArdle, 62 N.H. 354, supra; Tuck v. Nelson, 62 N.H. 469, 472; True v. Shepard, 51 N.H. 501, 503.
The 1941 amendment (Laws 1941, c. 132) eliminated the statutory provision for revision of the ruling of the Trial Court so that the question now rests in the sound discretion of the Trial Court. "If the court finds that injustice may be done without the testimony of the party, the court may, in its discretion, allow such party to testify." R.L., c. 392, s. 26.
The exceptions to the discretionary action of the Trial Court under the amended section cannot be sustained upon the partial record before us. It does not disclose what evidence from other witnesses was before the jury, and it cannot be said that a finding that injustice might result from exclusion of the testimony was compelled as a matter of law.
The exception to the refusal to permit the plaintiffs to testify grounded upon the hypothesis that the administrator elected to testify when he offered the testimony of his wife is without merit. She was not the representative of the estate and the disqualification imposed by the statute is waived only by the election of the representative himself. R.L., c. 392, s. 25. There is no evidence to support the assertion made at the trial that the wife was "closely interested" in any legal sense. White v. Poole, 74 N.H. 71, 74, supra; Smith v. Wells, 70 N.H. 49, 51; Chase v. Pitman, 69 N.H. 423, supra; Foster v. Ela, 69 N.H. 460. Cf. Chagnon v. Perkins, 88 N.H. 362. It was the administrator who was "the only heir."
Exceptions overruled.
All concurred.