Manegold v. Massachusetts Life Insurance , 131 Ala. 180 ( 1901 )

McCLELLAN, C. J.

It seems quite clear; to us that the witness Watts was not a “person having a pecuniary interest in the result of the suit” prosecuted by Mrs. Manegold against the Insurance Company. No possible judgment in that cause could subject his estate to liability'- or establish a status under which his estate could be subjected or any pecuniary right of his be affected ; nor, on the other hand, could any result possible of attainment in that suit involve pecuniary gain to him within either the letter or spirit of the statute. Code, § 1794. It may possibly be that if the Insurance Company had lost this case it would have discharged Watts as its agent, and it may possibly be that such action on the part of the company would have entailed pecuniary loss upon Watts; but it is entirely conjectural whether the company. would have discharged Watts, and, if it had, it is further pure conjecture "whether he would have suffered pecuniarily thereby. If is, of course, not such uncertain, speculative and remote peeuniary interests as those just referred, to that will disqualify a witness to testify as to transactions with or statements by a deceased person whose estate is interested in the result of the suit, hut to disqualify the interest must- he pecuniary and it must be involved in the suit so as to be affected by the judgment to be rendered therein. “A case cannot arise for the application of the * exception unless it involves a direct, immediate conflict of interest between the dead and the living.” — Ala. Gold Life Ins. Go. v. Sledge, 62 Ala. 566; Hotrle v. Eckoardsi 97 Ala. 649. “A mere suggestion of a remote and contingent interest, of the existence of which there is no evidence, does not warrant the exclusion of a statement by one hot a party to the suit.” Cromwell v. Horton, 94 Ala. 647.

So far as Watts being shown to have pecuniary interest in the result of this suit opposed to the interest of the administratrix against whom he ivas called as a witness, it would seem that if he can be said to have had any such interest it was in line with the interests of the plaintiff and opposed to those of the party calling him, since if, as plaintiff asserts, he made a contract of insurance which was binding on defendant he was entitled to a certain share of the proceeds of the note given by Manegold for the amount of the first premium, and if defendant succeeded in the action this would be lost to him. But we do not rest our conclusion that he was competent to testify as to what passed between him and Manegold on the suggestion just made. He was clearly competent on the broad ground that he was not shown to have any pecuniary interest in the result of the suit.

There is no disqualification of any witness by the statute because of any relation he may sustain to the parties to the action so long as his relations are not such as render him a beneficial party though not named on the record. The statute does not proceed on the idea that because A was the agent of B in a transaction with C, since deceased, A in a suit involving the interests of B and C’s estate growings out of that transaction would presume upon the seal death had impressed upon the lips of C, to testify falsely for B; but it does proceed upon the theory that there is danger of false swearing on the part of A in the case supposed when he has a pecuniary interest opposed to C’s estate in the result of the suit, a danger which arises from the two facts that C cannot contradict him and that the situation offers a reward for his perjury. And so long as A has no such incentive to false swearing as is supplied by a pecuniary interest to be subserved by it in the particular suit, he is a competent witness against C’s estate as to any transaction with or statement by C in his lifetime whether in that matter he was the agent of the party calling him, and, if so, whether such party be an individual or a corporation.

Watts — and Smith, too, for that matter — being a competent witness to prove what occurred between him as agent for defendant and Manegold with reference to the rejection of the latter’s application for insurance, it was regularly and properly and beyond controversy proved in the case that if any contract o'f insurance at any time existed between Manegold and defendant, it bad been absolutely and completely annulled and avoided prior to the death of Manegold; and the city court was right in giving the affirmative charge, with hypothesis, for the defendant. It is plain also that had the demurrer to the second count of the complaint been overruled, instead of being sustained, and that count had remained in the case, the defendant on all the facts of the case would still have been entitled to the affirmative charge; so that whether the ruling on the demurrer to that 'Count, was correct or not is immaterial.

Affirmed.