Evans v. Farris , 188 Ark. 83 ( 1933 )

STATEMENT BY THE COURT.

W. E. Farris, Zara Farris, a minor, and Jess Farnam instituted a suit in the Logan Circuit Court against one Will Evans for damages on account of a collision between a car driven by Will Evans and the one in which plaintiffs were riding. At the time the complaint was filed an affidavit for attachment was executed, and the attachment was levied upon the automobile which was being driven by Will Evans at the time of the collision. Will Evans was and is a non-resident of the State. After the officer took possession of the automobile, Minnie Evans, the wife of Will Evans, filed her intervention in said cause claiming to be the owner of the car. Minnie Evans executed a delivery bond and possession of the car was delivered to her. On January 3, 1933, the ownership and right of possession of the car in controversy was determined by a jury against Mrs. Evans. The cause of action as between the plaintiffs and Will Evans was not tried at that time. The testimony on behalf of the intervener, Mrs. Evans, was to the following effect: Mrs. Evans testified that she resided in Sequoyah County, Oklahoma; that Will Evans was her husband; that she purchased the car in controversy from Loden Motor Company in Fort Smith, Arkansas; that all the papers evidencing the car transaction were signed by her and not by Will Evans. The "used car order blank" executed as evidence of the sale to intervener was here introduced in testimony which was signed by Mrs. Will Evans, Muldrow, Oklahoma. Witness further testified that she traded an old car in on this one and received a $200 credit on the purchase price. The balance of the purchase price was on payments and she made all deferred payments. Witness further said that on the date of the car collision, she permitted her husband to take the car for the purpose of carrying some passengers over into Arkansas. Witness further testified that the car was paid for out of her separate property.

H. S. Loden, a witness for intervener, testified that in 1928 he handled and sold DeSoto cars; he identified the contract exhibited by the intervener as the one executed for the purchase of her car; that he sold the car in question to Mrs. Evans; that she executed the notes in payment therefor, and that the balance has been paid. Two other neighbors of Mrs. Evans testified to her ownership of the car and detailed certain circumstances in reference thereto.

In behalf of plaintiffs in the original suit certain certificates from the State Highway Department of Oklahoma were introduced in evidence. No question is raised about the proper authentication of these certificates. These certificates show that for the years 1929, 1930 and 1931 the Oklahoma license fees were paid by Will Evans on the car in controversy. As to the right and authority of Will Evans to pay the accrued license fees, under the laws of Oklahoma, he was required and did execute on January 8, 1929. the following affidavit:

STATE OF OKLAHOMA FEE $1.00

Motor Vehicle Department _________________ Currency sent at your own risk.

State Highway Commission, Oklahoma City, Oklahoma.

APPLICATION FOR A CERTIFICATE OF TITLE FOR MOTOR VEHICLE Date, January 8, 1929.

DESCRIPTION OF MOTOR VEHICLE

Make or trade name, De Soto. Tag. no. 390-631. Style of Body, Coupe. Serial No. KP 726C Motor no. 20864. Year Made, 1928. Model, 1929. If Truck, Capacity _________

Give any private number or marks thereon, if any, which may assist in identifying said vehicle.

Pursuant to Chapter 43, Page 62, Session Laws of 1925, concerning motor vehicles.

I, (we) Will Evans of Muldrow, R. F. D. Box 96, Sequoyah County, Oklahoma, who is engaged in the following occupation of business, farmer, the owner of the above described motor vehicle, hereby make application for a certificate of title for said motor vehicle.

State of Oklahoma, County of Sequoyah — ss.

Will Evans being by me first duly sworn on his oath states:

That he is the * (only authorized agent of the) applicant named; that the matters set forth in said application are true of his own knowledge, and that said motor vehicle is subject to a lien of $655.20 in favor of Loden Motor Company, Fort Smith, Arkansas.

"WILL EVANS, Applicant.

"Subscribed and sworn to before me this the 8th day of January, 1929.

"My commission expires October 17, 1932.

* Strike as the case may require.

"W. D. MAYO, Agent. "Notary Public.

An affidavit similar in all reds to the one set out above was executed by Will Evans in 1930 and 1931 and all these affidavits with the certificates thereunto annexed were introduced in evidence over the objection of intervener. This was all the testimony introduced in said cause. Whereupon intervener requested the court to direct the jury to return a verdict in her favor for the car in controversy. This requested instruction was refused, and intervener saved exceptions. The jury returned a verdict against intervener, therefore this appeal. (after stating the facts). We have reached the conclusion that the trial court erred in refusing to direct the jury to return a verdict in favor of intervener for the possession of the car in controversy. Therefore, it will be unnecessary to set out or discuss the instructions given and refused.

There is no testimony in this record contradicting the testimony on behalf of intervener as to ownership of the car save and except the ex parte affidavits of her husband, Will Evans, filed with the Oklahoma State Highway Department in the negotiations for and purchase of license plates for the years 1929, 1930 and 1931. It is the well-settled law in this State that a husband and wife cannot testify for or against each other except in business transactions wherein the husband or wife acts in the capacity of agent. The third division of 4146, Crawford Moses' Digest, so provides in plain language. It is practically conceded in briefs that Will Evans would not have been a competent witness to testify against his wife to the effect that he was the owner of the car. Under the law, he should not be permitted to do indirectly that which he is prohibited doing directly by statute. The ex parte affidavits of the husband in reference to his ownership of the car were inadmissible for the reasons aforesaid.

The case of McClintock v. Skinner, 126 Ark. 591,191 S.W. 230, is cited as sustaining an exception to this general rule. This is not the effect of that opinion. The second headnote to the case referred to reads as follows:

"Where a married woman permits her husband to hold her chattels, and deal with them as his own, she will be estopped as against his creditors to claim them as hers."

There is no contention in the instant case that the intervener permitted her husband to use or deal with the automobile in controversy as his property; there is no contention that she permitted her husband to hold this automobile out to creditors as his property. Under the uncontroverted testimony in this case, intervener has done no act which would estop her from asserting title and ownership to the car in controversy.

For the error indicated, the cause is reversed and remanded with directions to proceed according to law and not inconsistent with this opinion.