Opinion
No. 24016.
January 7, 1936.
(Syllabus.)
1. Witnesses — Incompetency to Testify in Own Behalf as to Transactions With Persons Since Deceased.
Under the provisions of section 271, O. S. 1931, a party to a civil action against the administrators of a decedent is incompetent to testify in his own behalf in respect to any transaction or communication had by such party with such deceased person.
2. Same — Statutory Inhibition Goes to Competency of Witness and not to Competency of Evidence.
The inhibition of the statute goes to the competency of witness to testify and not to the competency of the evidence of such witness.
3. Same — Statutory Right not Waived by Propounding to Witness Preliminary Questions Touching His Competency.
In order to ascertain whether a witness is competent or incompetent within the provisions of section 271, O. S. 1931, a party may be subjected to a preliminary examination touching his Competency without waiving the right to object to such party testifying as a witness in the case.
4. Same — Appeal and Error — Permitting Plaintiff Over Objection to Testify as to Transactions With Person Since Deceased Held not Harmless Error.
Where a party is an incompetent witness by reason of section 271, O. S. 1931, and proper objections are interposed to the competency of such party to testify, the overruling of such objection and permitting the plaintiff to testify to facts essential to the cause of action and on disputed questions constitutes a substantial violation of a statutory right of the adverse party and is not harmless error.
Appeal from District Court, Jefferson County; Eugene Rice, Judge.
Suit for money judgment brought by Ettie Davis against U.S. Hartsell and D.D. Hartsell, administrators of the estate of J.C. Hartsell, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions for a new trial.
M.D. Hartsell, E.N. Jones, and E.L. Dillard, for plaintiffs in error.
G.F. Womack, Bridges Ivey, and S.H. Singleton, for defendant in error.
This is an action ex contractu instituted in the district court of Jefferson county on September 15, 1931, by Ettie Davis, as plaintiff, against U.S. Hartsell and D.D. Hartsell, administrators of the estate of J.C. Hartsell, deceased. The plaintiff sought to recover a money judgment for services rendered to deceased during his lifetime pursuant to an agreement between herself and him.
On the trial of the case the plaintiff was permitted to testify, over the objection of defendants to her competency as a witness, concerning transactions with the deceased and to facts which would tend to raise an implied contract between herself and the deceased. The admission of such evidence over the defendants' objection is, prejudicial error by reason of the incompetency of the witness under section 271, O. S. 1931.
This is a companion case to the case of U.S. Hartsell et al. v. H.L. Davis, 175 Okla. 446, 53 P.2d 261, and the questions herein involved are the same as those presented in that case the plaintiff in this case being the wife of the plaintiff in that case.
Upon the authority of that case and Pancoast, Adm'r, et al. v. Eldridge, 157 Okla. 195, 11 P.2d 918, and in accord with the views therein announced, this case is reversed and remanded for a new trial, and the syllabus of the former case is adopted as the syllabus of this case.
McNEILL, C. J., OSBORN, V. C. J., and WELCH, BAYLESS, CORN, and GIBSON, JJ., concur. RILEY and PHELPS, JJ., absent.