Summary
In Wunderlich v. Holt, 86 Mont. 260, 283 P. 423, 425, we said: "It is lodged in the sound discretion of the court to determine in each case, as it develops during the trial, whether the testimony is necessary to enable the plaintiff to make out a prima facie case, and thus prevent an injustice."
Summary of this case from Ahlquist v. PinskiOpinion
No. 6,509.
Submitted October 4, 1929.
Decided December 27, 1929.
Executors and Administrators — Claims Against Estate Arising on Contract — Rejection — Action on Claim — Evidence — Declarations of Decedent — Rule Relating to Admissibility — Statement of Claim — Degree of Accuracy Required — Instructions Argumentative in Character Properly Refused.
Executors and Administrators — Claims Against Estate Need not State Facts With Detail Required in a Complaint. 1. A claim against an estate arising upon a contract and upon which an action is brought need not state the facts with all the detail necessary to the statement of a complaint; if it advises the administrator or executor of the nature and amount of the claim and shows enough to bar another action on the same demand, it is sufficient.
Same — Statement of Claim Against Estate Held Sufficient as Against Contention of Indefiniteness. 2. Under the above rule, held that a claim against decedent's estate under agreement with decedent, for taking care of the latter's ranch, "including care of invalid brother of deceased" for a certain number of months in the year 1924, "same as above" for the years 1925 to and including 1927, stating amount due for each period, was sufficient as against the objection that it was not sufficiently definite and certain to form the basis of an action.
Same — Action on Claim Against Estate — Declarations — Testimony of Oral Communications Between Deceased and Claimant Relative to Claim — When Admissible. 3. Under subdivision 3 of section 10535, Revised Codes 1921, providing that parties, or assignors of parties, to an action against an executor or administrator upon a claim against the estate of a deceased person, cannot be witnesses "as to the facts of direct transactions or oral communications between the proposed witness and the deceased," unless it appears to the court that without the testimony of the witness, injustice will be done, held, that the discretion lodged in the trial court to admit or reject testimony of the character of the above, was not abused in admitting the testimony of claimant against an estate as to transactions and oral communications had between him and decedent with relation to the contract upon which his claim was based, it being apparent that without such testimony plaintiff could not have established his claim, testimony of other disinterested witness — corroborative of that of plaintiff — lacking in sufficient definiteness to prove it.
Same — Claim Against Estate — Rule as to Admissibility of Testimony of Oral Communications Between Claimant and Deceased. 4. A trial court should not admit testimony of the character of the above prior to a showing that plaintiff has an obviously meritorious cause of action against the estate, until sufficient other testimony is admitted to warrant the court in exercising its discretion in favor of the questionable, and prima facie incompetent, testimony; its discretion must be exercised with caution and reasonable strictness and not so loosely as to infringe on the general rule, unless it reasonably appears that otherwise injustice will result and, therefore, the exception, rather than the rule, should apply. (See special concurring opinion of MR. CHIEF JUSTICE CALLAWAY, concurred in by ASSOCIATE JUSTICES MATTHEWS and GALEN.)
Same — Declarations of Decedent — Instruction Argumentative in Character and Containing Advice to Jury Properly Refused. 5. Where, in an action against an estate, testimony, other than that offered by plaintiff, with relation to declarations of the decedent relative to the claim sued upon, is admitted, an instruction that all evidence of that nature, including that of plaintiff, should be viewed with caution is proper, but where one is offered containing argumentative matter and advice to the jury, it is not error to refuse it.
Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.
Mr. N.A. Rotering and Mr. W.D. Kyle, for Appellant, submitted a brief; Mr. Kyle argued the cause orally.
Mr. William Meyer, for Respondent, submitted a brief and argued the cause orally.
Insufficiency of the claim and complaint: A claim against the estate of a deceased person must disclose a prima facie right of recovery in favor of the claimant against the estate. ( Harwood v. Scott, 57 Mont. 83, 90, 186 P. 693; Wilkes v. Cornelius, 21 Or. 348, 28 P. 135; Sargent v. Foland, 104 Or. 296, 207 P. 349; Stockton Sav. Bank v. McCown, 170 Cal. 600, 150 P. 985; Flynn v. Driscoll, 38 Idaho, 545, 34 A.L.R. 352, 223 P. 524; 24 C.J. 350.)
A legally executed and presented claim against the estate of a decedent is an essential element to the statement of a cause of action for the recovery of a debt from such estate. ( Ullman Co. v. Adler, 59 Mont. 232, 196 P. 157; Empson v. Fortune, supra.)
The law regards with suspicion and disfavor a claim against the estate of a deceased person for personal services rendered by a relative, especially where the latter was a member of the decedent's household, the presumption being that such services between persons occupying such relation are intended to be gratuitous, and such a claim therefore requires stronger proof to establish it than claims by strangers. (24 C.J. 281 and cases cited; Wilkes v. Cornelius, supra; Hodge v. Hodge, 47 Wn. 196, 11 L.R.A. (n.s.) 873, 91 P. 764; Howard v. Randolph, 134 Ga. 691, 20 Ann. Cas. 392, 29 L.R.A. (n.s.) 294, 68 S.E. 586; Re Daste, 125 La. 657, 29 L.R.A. (n.s.) 297, 51 So. 677; 5 Ency. of Ev. 428.)
Insufficiency of the evidence: The question as to whether the decedent made the agreement with the respondent being wholly dependent on alleged verbal declarations of the decedent, the evidence respecting such declarations must be viewed with great caution and scrutiny, such evidence being the weakest and least satisfactory of any in persuasive value. ( Escallier v. Great Northern Ry. Co., 46 Mont. 238, 127 P. 458; Reid v. Hennessy Mer. Co., 45 Mont. 383, 389, 123 P. 397; Roman v. Albert, 81 Mont. 393, 264 P. 115; Sanger v. Huguenel, 65 Mont. 236, 211 P. 349; Marcellus v. Wright, 65 Mont. 580, 212 P. 299; Roy v. King's Estate, 55 Mont. 567, 179 P. 821; Security State Bank v. McIntyre, 71 Mont. 186, 228 P. 618; Welch v. All Persons, 78 Mont. 370, 254 P. 179; Hoppin v. Lang, 81 Mont. 330, 263 P. 421; In re Fisher's Estate, 128 Or. 415, 274 P. 1098; Wolf v. Donahue, 206 Cal. 213, 273 P. 547; Pollock v. Ray, 85 Pa. St. 428; 22 C.J. 291.)
"Public policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids." ( Van Slooten v. Wheeler, 140 N.Y. 624, 35 N.E. 583.)
The evidence in this record not only permits, but in fact requires, the conclusion to be drawn therefrom that the decedent was providing a home on his ranch for his brothers without charge to them or cost to him, and that they on their part in consideration thereof were only expected to do the ordinary things required for their needs and its protection and preservation, and hence renders the evidence insufficient to support the verdict. The burden of proof being upon the plaintiff, it was not only incumbent upon him to produce evidence proving or tending to prove his alleged agreement with the decedent but such evidence to be sufficient for the support of a verdict rendered thereon must not furnish the basis for any other conclusion. ( Fisher v. Butte Elec. Ry. Co., 72 Mont. 594, 605, 235 P. 330; Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 P. 515; De Sandro v. Missoula L. W. Co., 48 Mont. 226, 136 P. 711; Fusselman v. Yellowstone Valley L. I. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 P. 473; Scheytt v. Gallatin Valley Mill. Co., 54 Mont. 565, 172 P. 321; Winnicott v. Orman, 39 Mont. 339, 102 P. 570; Andree v. Anaconda Copper Min. Co., 47 Mont. 554, 133 P. 1090; Wallace v. Chicago etc. Ry. Co., 48 Mont. 427, 138 P. 499.)
On the trial respondent over appellant's objection was allowed to testify as to the agreement which he asserts the decedent made with him. Such alleged agreement being wholly verbal, respondent was incompetent to testify thereto unless it appeared to the court that without his testimony an injustice would be done him. (Sec. 10535, Rev. Codes 1921; Roy v. King's Estate, 55 Mont. 567, 179 P. 821; Marcellus v. Wright, 65 Mont. 580, 212 P. 299; Anderson v. Wirkham, 67 Mont. 176, 215 P. 224; Averill Machinery Co. v. Taylor, 70 Mont. 70, 223 P. 918.) The statute in question is not only concerned with doing justice to the survivor but to the dead as well, and the record in this case we believe establishes that a far greater injustice was done the estate of the decedent than could possibly have been urged had the plaintiff not been permitted to testify, the plaintiff not being without witnesses as to his alleged contract and services whereas the defendant was without a single witness to speak for the dead.
The main contention of appellant seems to be that the claim against the estate is not sufficiently definite and specific to comply with the provisions of our statute. Authorities are cited in support of this contention. Upon a review of them we have no hesitancy in making this prediction: Many of such authorities not only do not support the contention of appellant, but they hold that the claim filed herein by respondent was sufficient and in compliance with our statute. The following establish that the claim is sufficient: 24 C.J. 348; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911; Elizalde v. Murphy, 163 Cal. 681, 126 P. 978; Britian v. Fender, 116 Mo. App. 93, 92 S.W. 179.
Counsel next contend that the claim must contain some averment to rebut the presumption that because respondent and decedent were brothers any services rendered were rendered gratuitously. This contention is without merit. The rule is only intended to apply where the claim is based upon an implied promise. In this case the claim is based upon an express agreement. Counsel in support of the rule first cite 24 C.J. 281. In support of the text we, however, find the following cases: "Where sisters have not lived together and are dependent on their labor for their livelihood, and one furnishes board and services to her sick sister until her death, there is no presumption that the services were gratuitous." ( Matter of Lannon, 75 Misc. Rep. 66, 134 N.Y. Supp. 974.) "In an action by a sister of a decedent against his administrator for washing done for decedent and for nursing him in his last illness, evidence that these services were performed is sufficient to justify a recovery, the burden being on the defendant to show that they were rendered gratuitously." ( Dance's Admr. v. Magruder, 26 Ky. Law Rep. 220, 80 S.W. 1120.) A case almost on all-fours with the case at bar is Grimm v. Taylor's Estate, 96 Mich. 5, 55 N.W. 447, wherein it was held "that a person who has supported and cared for some relative at the request of another and upon the promise of the latter to pay therefor has a valid claim against the estate of the latter for compensation." To the same effect, see In re Payne's Estate, 204 Pa. St. 535, 54 A. 337. It is held in Eppert v. Gardiner, 48 Ind. App. 188, 93 N.E. 550, "That a promise rebuts the presumption that the services were gratuitous." (See, also, Mark's Admr. v. Boardman, 28 Ky. Law Rep. 455, 89 S.W. 481.)
Counsel cite many cases with reference to the effect given to evidence where an agreement depends upon evidence of verbal declarations of a decedent. The court will find the facts herein disclose a situation far different from that disclosed in any of the cases wherein this court held that the evidence was not sufficient to warrant the submission of the case to the jury. They also cite some cases in support of the proposition that where an agreement with a decedent is proved by verbal declarations such evidence must be viewed with great caution and scrutiny, it being the weakest and least satisfactory of any in persuasive value. It requires but the most cursory review of the cases cited to establish that what was said by the court therein was not intended to apply to a situation such as here disclosed.
Counsel next discuss specifications of error relating to appellant's objection to the court permitting respondent to testify to the alleged agreement with decedent and thereafter refusing to withdraw the same from the consideration of the jury. In support of their contention counsel cite the statute of this state and also four cases from Montana. These cases affirmatively establish two things: First, that permitting, or refusing to permit, respondent to testify was clearly within the discretion of the court, and, secondly, that to have refused such permission in view of the entire record and the testimony introduced by the other witnesses would have been equivalent to doing an injustice to respondent and would have been erroneous.
If the rule vesting the admission of such testimony in the discretion of the court means anything, it means that unless plaintiff can produce other testimony sufficient in itself to establish the contract sued upon an injustice would result if plaintiff's testimony was not admitted. To give the rule as announced by this court any other construction would render it meaningless. It was necessary that plaintiff be permitted to testify regarding the agreement with decedent because otherwise he could not have established said agreement and his cause of action would have failed. He would have been denied redress and thereby an injustice would have been done him.
This is an action to establish a claim against the estate of Charles A. Wunderlich, deceased.
The complaint alleges that plaintiff during the months of March, April, May and August to December, inclusive, 1924, and during the entire years 1925 and 1926, and from January to August, inclusive, 1927, at the request of Charles A. Wunderlich, rendered services for him in taking care of a ranch at Divide, and caring for W.F. Wunderlich, an invalid brother, for which Charles A. Wunderlich agreed to pay the reasonable value; that the services were worth $75 per month, no part of which has been paid, except the sum of $936, leaving a balance due of $2,089.25; that plaintiff paid the sum of $34.50 for the use and benefit of deceased. It is alleged that a claim was duly presented to the executrix within the time required by law, and by her rejected, save as to the sum of $34.25, which was allowed and approved. A copy of the claim was attached to the complaint, which, omitting the verification and other matters not material, was as follows:
"The undersigned, creditor of Charles A. Wunderlich, deceased, presents his claim against the estate of said deceased, with the necessary vouchers for approval, as follows, to-wit:
"Estate of Charles A. Wunderlich, Deceased, to L.G. Wunderlich, Dr.
1924.
Care of ranch at Divide, Montana, including care of invalid brother of deceased, March, April, May ............................................. $ 225.00
Same as above, August to December, inclusive, 5 months .......................................... 375.00
1925
Same as above, January to December, inclusive, 12 months .......................................... 900.00
1926
Same as above, January to December, inclusive, 12 months .......................................... 900.00
1927
Same as above, January to August, inclusive, 8 months .......................................... 600.00
Paid C.B. Hoskins Co. Druggist, bill in full ..... 9.25
Paid Mary Shields, nurse for deceased .............. 5.00
Paid Rev. E.J. Groeneveld for funeral services ..... 20.00 ___________ $3,034.25"
The claim shows credits for hay sold by plaintiff amounting to $936, leaving a balance due of $2,098.25.
The answer admits the due presentation of the claim and its allowance in the sum of $34.25, and denies the other allegations of the complaint. By way of separate defense the answer alleges that decedent was the owner of 240 acres of land prior to his death, and that he provided a home on a portion thereof, consisting of eighty acres, for plaintiff and W.F. Wunderlich; that the other 160 acres were held by William H. Chadwick under an escrow agreement for its sale and conveyance entered into on September 19, 1916; that Chadwick, by virtue of said agreement, had possession thereof from September, 1916, until January, 1925, and that plaintiff did not work or occupy said land during that time; that only a small portion of the eighty acres occupied by plaintiff was tillable on which potatoes were raised through the joint efforts of the three brothers and Chadwick; that, after Chadwick removed from the land, it was leased to others on a crop basis; and that plaintiff did not perform any services for deceased in the operation thereof or otherwise.
The reply admits that Chadwick occupied the 160 acres as alleged, but alleges that plaintiff performed work thereon, such as repairing the fences and cleaning the ditches, and puts in issue the other allegations of the answer.
The cause was tried to the court sitting with a jury. Verdict and judgment were for the plaintiff. Defendant's motion for a new trial was denied, and she appealed from the judgment.
Several specifications of error raise the question of the sufficiency of the claim upon which the action is founded. It is contended by defendant that the claim is not sufficiently definite and certain to form the basis of an action.
Under our statute, all claims against an estate arising upon contracts must be presented within the time required by law. (Sec. 10173, Rev. Codes 1921.) If not so presented, no action can be brought thereon. (Sec. 10180, Id.) A claim need not state the facts with all the details necessary to a complaint. ( Nevin-Frank Co. v. Hubert, 67 Mont. 50, 214 P. 959.) If the claim advises the administrator or executor of the nature and amount of the claim, and shows enough to bar another action on the same demand, it is sufficient. ( Harwood v. Scott, 57 Mont. 83, 186 P. 693.)
By section 10174, Revised Codes 1921, it is provided: "The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim." And section 10179, Id., provides: "When a claim is presented to a judge for his allowance, he may, in his discretion, examine the claimant and others on oath, and hear any legal evidence touching the validity of the claim." If the executrix desired more information relative to the exact nature of the claim in question here, she should have demanded proofs to be produced before acting on the claim.
The purpose to be accomplished by our statutory provisions relating to the presentment of claims against estates is to bring all claims to the knowledge of the executor or administrator so that proper inquiry and investigation may be made regarding their validity, with the view of enabling the executor or administrator to pass intelligently upon them.
In other jurisdictions, claims no more definite than the one here have been held sufficient. ( Hurd v. Varney, (N.H.) 144 A. 266; Miller v. Summers, 124 Ark. 599, 187 S.W. 664; Fairley v. Currie, 120 Miss. 400, 82 So. 267; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Crampton v. Kirfel, 37 S.D. 292, 157 N.W. 1057; Hays v. Miller's Estate, 189 Mo. App. 72, 173 S.W. 1096.)
The claim in question here was sufficient to accomplish the legislative purpose in requiring presentation of claims.
Defendant contends that the court erred in permitting plaintiff to give evidence, over objection, of direct transactions and oral communications between him and deceased, in proof of the agreement between the parties.
Prior to 1909 our statute contained the following prohibition: "The following persons cannot be witnesses: * * * 3. Parties or assignors of parties to an action or proceeding or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person." (Sec. 7891, Rev. Codes 1907.)
By Chapter 66 of the Laws of 1909, subdivision 3 above was amended to read as follows: "Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person, as to the facts of direct transactions or oral communications between the proposed witness and the deceased, excepting when the executor or administrator first introduces evidence thereof, or when it appears to the court that, without the testimony of the witness, injustice will be done." (Subd. 3, sec. 10535, Rev. Codes 1921.)
In Roy v. King's Estate, 55 Mont. 567, 179 P. 821, 823, the court, in speaking of the purpose of the amended statute, said: "The evident purpose of this provision was to declare the plaintiff in the action an incompetent witness, unless the defendant waives the incompetency, which he may do, as provided in the first exception, or unless, under the second exception, it appears to the court that, if the witness is not allowed to testify, recovery cannot be had upon a cause of action which is obviously meritorious. It thus becomes apparent that it is lodged in the sound discretion of the court to determine in each case, as it develops during the trial, whether the testimony is necessary to enable the plaintiff to make out a prima facie case, and thus prevent an injustice." This court has ever since adhered to this construction of the statute. ( Averill Machinery Co. v. Taylor, 70 Mont. 70, 223 P. 918; Anderson v. Wirkman, 67 Mont. 176, 215 P. 224.)
While the power to admit or reject such testimony rests in the discretion of the trial court, it should be admitted only when, under all the facts and circumstances, it appears to the court that injustice will be done if the testimony is excluded. As was pertinently stated by Mr. Chief Justice Callaway, speaking for the court in Marcellus v. Wright, 65 Mont. 580, 212 P. 299, 302: "When should a court determine to admit the testimony of the survivor against one whose `mouth is stopt with dust'? Manifestly only when it appears to the court that, in view of all the surrounding facts and circumstances, injustice will result if the testimony is excluded. While undoubtedly the power to admit and reject such testimony is reposed wisely in the sound discretion of the trial court, it cannot be too careful in exercising that discretion. Every judge has observed the freedom with which a witness testifies who knows he cannot be contradicted. Courts should scrutinize with more than usual care the quality of proof presented in such cases, and when the testimony relates to oral communications between the witness and the deceased, it must be viewed with caution."
The question is, Did the court under the facts here presented abuse its discretion in permitting plaintiff to testify as a witness as to facts of direct transactions and oral communications between himself and deceased?
Defendant contends that the discretion of the court was abused because the plaintiff was able to, and did, prove his contract by the testimony of Leta L. Morrow, a disinterested witness. She testified that she had a conversation with deceased in the summer of 1924, and, she said, she "asked Charlie [the deceased] when he was going to California, because I wanted to get Lou to do some work for me on the Lavell place or the Morrow place, and I wanted plenty of time for it, and he said that Lou couldn't do any more work because he was going to California and Lou would have to stay and take care of Willie, and they made an arrangement and he was going to pay Lou for his time." On cross-examination she testified: "This conversation I had with Charles in 1924 was at Divide; he was going over to the store and I stopped the car and talked with him and asked him, as I said, when he was going to California, because before he left I knew someone would have to be with Willie and I wanted Lou to do some work for me. I can't fix the month of that conversation, but it was in the summer of 1924, and it was probably six weeks after he came back from California. He told me I couldn't get Lou because he was working for him. He also stated that he had hired Lou to do this work, and was going to pay him for taking care of the 80 and taking care of Willie; that Willie couldn't be left alone any more and he himself wouldn't stay here. He didn't tell me how much he was going to give him."
The testimony of Mrs. Morrow, standing alone, would not have been sufficient to establish plaintiff's claim. From it, the amount of compensation as well as the nature of the work to be performed and the exact time of making the contract were not shown. It did not establish an agreement with sufficient definiteness to permit recovery. ( Donovan v. Bull Mountain Trading Co., 60 Mont. 87, 198 P. 436; Price v. Stipek, 39 Mont. 426, 104 P. 195.) This evidence, however, taken in connection with other testimony of disinterested witnesses appearing of record showing that plaintiff performed the services alleged in the complaint, together with proof that no one else was present when the agreement was made, and that plaintiff had no other means of proving the details of his alleged agreement, was amply sufficient to justify the court in concluding, as it did, that without plaintiff's testimony injustice would be done. There was therefore no abuse of discretion in permitting plaintiff to testify as to facts of direct transactions and oral communications had with the deceased.
Defendant also contends that the evidence is insufficient to support the verdict.
Consideration of all of the evidence in the case discloses that plaintiff, in reliance upon the promise of Charles A. Wunderlich to pay him the reasonable value therefor, performed services for him at the times alleged in the complaint in caring for W.F. Wunderlich, an invalid brother who was subject to epileptic fits, and in looking after the interests of Charles A. Wunderlich in two ranches, and that the services were of the reasonable and agreed value of $75 per month. No useful purpose would be subserved in setting out the evidence in detail. It is sufficient to say that it amply supports the allegations of the complaint with reference to the agreement between the parties, its performance by the rendition of the services contemplated, the reasonable and agreed value thereof, and the nonpayment to the extent alleged.
The defendant contends that the testimony introduced by plaintiff is so inherently improbable, unnatural, unreasonable and incredible as to make it unbelievable, and that under the rule announced in Casey v. Northern P. Ry. Co., 60 Mont. 56, 198 P. 141, Whitney v. Bertoglio Mercantile Co., 65 Mont. 358, 211 P. 323, Northwestern etc. Co. v. Leighton, 66 Mont. 529, 213 P. 1094, McIntyre v. Northern P. Ry. Co., 56 Mont. 43, 180 P. 971, Roman v. Albert, 81 Mont. 393, 264 P. 115, and other cases, the verdict cannot be upheld.
A careful review of the entire evidence convinces us that the rule contended for has no application to the facts disclosed by the record in this case.
Error is predicated upon the action of the court in sustaining an objection to the introduction in evidence of two checks signed by deceased and made payable to plaintiff. One of the checks was in the sum of $44, dated November 14, 1924, and the other was in the sum of $25, dated November 24, 1924. It is contended by defendant that the checks were admissible to disprove plaintiff's testimony that the deceased had never paid him any of the compensation due him.
The record discloses that these two checks, together with a number of others, were offered by defendant as one exhibit. The objection thereto was as follows: "If the court please, there is one check dated December 2, 1926, for $20.00. As to that check we have no objection; as to each and all of the other checks from June 22, 1920, back to 1899, we object for the reason that the checks are incompetent, irrelevant and immaterial; that they do not prove or tend to prove any issue in this case; that they are checks made payable to W.F. Wunderlich, long antedating the date of the agreement here sued upon; that they can have no relevancy or bearing upon any issue in this case; that they are irrelevant, incompetent and immaterial." The court sustained the objection, "except as to the check bearing date of December 2, 1926." It thus appears that no objection was made to the introduction of the checks dated November 14, 1924, and November 24, 1924, respectively, and neither did the ruling of the court exclude them.
Defendant also predicates error upon the refusal of the court to give certain instructions offered by her. We have carefully considered the propriety of the court's action in this respect, and find that there was no error committed in refusing to give the offered instructions. The matters embraced in some of them were covered by other instructions given, and others were either erroneous or inapplicable to the facts appearing of record.
No reversible error appearing, the judgment is affirmed.
ASSOCIATE JUSTICE FORD concurs.
ON MOTION FOR REHEARING. (Decided January 9, 1930.)
On petition for rehearing but one question deserves consideration. We are urged to reconsider the propriety of the court's action in refusing to give offered instruction K, an instruction to the effect that the jury should view all evidence of conversations with deceased with caution.
The court had given instruction 4L, which directed the jury to view plaintiff's evidence of such conversations with caution. But, since the record discloses that a witness other than plaintiff had testified regarding such conversations, it is contended instruction K should have been given.
Upon a request being made, the court should have instructed the jury that all evidence of such conversations should be viewed with caution. But the offered instruction, in addition to this subject, contained argument and advice to the jury similar to that which was condemned by this court in Knowles v. Nixon, 17 Mont. 473, 43 P. 628, and was therefore erroneous and properly refused.
A rehearing is denied.
I concur, but in my judgment the court should not have permitted plaintiff to testify as to the facts of direct transactions and oral communications between himself and Charles W. Wunderlich prior to a showing by competent testimony that plaintiff had an obviously meritorious cause of action against the estate. However, I am satisfied from the testimony of the witnesses Leta L. Morrow and Messrs. Morrow, Holgren, Curtis and King that the court was justified in deciding that a recovery could not be had upon an obviously meritorious cause of action without the plaintiff's testimony, and cannot be said to have abused its sound discretion in admitting it. In view of this situation, the judgment should not be reversed because of an error which has not affected the substantial rights of the parties. A trial court should not admit the testimony of a witness, prima facie incompetent, until sufficient other testimony is admitted to warrant the court in exercising its discretion in favor of the questionable testimony. ( Cobb v. Follansbee, 79 N.H. 205, 107 A. 630.) The court must exercise its discretion with caution and reasonable strictness, and not so loosely as to infringe on the general rule, unless it reasonably appears that otherwise injustice will result, and therefore the exception rather than the rule should apply.
ASSOCIATE JUSTICES MATTHEWS and GALEN concur in the opinion of MR. JUSTICE ANGSTMAN, and also in the concurring opinion of the CHIEF JUSTICE.