Tierney v. Hannon , 81 Mo. App. 488 ( 1899 )

BOND, J.

Plaintiffs claimed in the probate court an allowance of $800, as the balance of an account in their favor against the estate in the hands of the defendant as executor. Defendant filed a counterclaim. There was a judgment for plaintiffs in the probate court and -against the counter-claim, from which defendant appealed to the circuit court. On the trial in the circuit court plaintiffs called as a witness in support of the account, one of the claimants, claiming the right to do so because it was admitted that this witness, after being introduced on behalf of plaintiffs in the probate court and testifying on direct examination to the extent permitted by statute, was cross-examined by defendant as to the merits of the whole account. The court excluded this witness. Plaintiffs excepted and saved their point on their motion for a new trial and present it for review on their appeal to this court.

The witness called by the appellant on the trial in the probate court was a party to the contract with the decedent which was on trial, and hence was not competent to -testify in her own favor except as to the handwriting of the charges in the book of -accounts and when they were made. E. S. 1889, sec. 8918. After an examination in chief confined to the statutory limit, respondent cross-examined -this witness as to all matters pertaining to -the account in suit, and concerning which she would not have been entitled to 'speak except as a witness for respondent. By so doing respondent made her his witness and waived her statutory incompetency, since the rule is well settled that the cross-examination of a witness of limited competency in excess of examination in chief confined strictly to the matters concerning which the witness is privileged to testify, makes the witness that of the party so cross-examining. Nichols v. Nichols, 147 Mo. loc. cit. 403.

The only remaining question is, whether or not this waiver in the probate court of the incompetency of the witness to testify generally rendered her competent to testify in her own favor upon a trial anew in the circuit court ? These exact facts have not been presented for adjudication in the appellate courts of this state, but it has been repeatedly held that the taking of a deposition of a party, incompetent to testify under the statute, by her adversary, is a full waiver of such incompetency and entitled the deponent in a subsequent trial in court to appear and testify in his own behalf as to all matters within the scope of the deposition, whether it is read or not by the party who took it. Borgess v Yette, 142 Mo. loc. cit. 571; In re Estate of Soulard, 141 Mo. 642; Ess v. Griffith, 139 Mo. loc. cit. 330; Tomlinson v. Ellison, 104 Mo. 114. In New York it is held that where the plaintiff in a suit for personal injuries on one trial calls his physician to testify, this is a waiver of the statutory incompetency of the witness, and entitles the defendant on his own behalf to call the witness to testify on a second trial of the action. McKinney v. Railroad, 104 N. Y. 352 and 354. In Pennsylvania (Forrester v. Kline, 64 Pa. St. 29), it is ruled that the examination of a defendant by plaintiff at an arbitration removes the incompetency of the witness to testify on his own behalf in a subsequent suit in court. To the same effect is Lisbon v. Bath, 23 N. H. 1. In Den v. Dowman, 13 N. J. L. 147, it is said: “If a party will avail himself of a witness whom he and nbt his adversary can exclude, he surely ought not to be allowed to close his mouth when his adversary would examine him.” See also Thomas v. Irvin, 90 Tenn. 512, and in re Estate Dunlap, 94 Mich. 11. The ground of these decisions is the obvious unfairness of permitting a party to call a witness who can not testify for h'imself, and, when it is discovered that the testimony so'elicited is unfavorable, for that reason, to refuse to allow such witness to testify on his own behalf in subsequent proceedings. The cases announcing -this rule can not.be distinguished in principle or reason from the facts presented on this appeal. For while it is true (as stated by respondent) that the circuit court on appeal from the probate court must proceed to try the case anew “without regarding any error, defect or other imperfection in the proceedings in the probate court” (R. S. 1889, sec. 292); it is also true that the second trial of a cause originating in the circuit court is conducted with a like disregard of the proceedings on the first trial, and yet, as has been seen, in New York it is held that on a second trial of the same cause a witness may be called to testify for one party on account of the previous waiver of his statutory incompetency by the other party on the former trial. There is no valid reason why the same rule should not apply to the trial in the circuit court of a cause which had been previously tried in the probate court. While it is true the oral testimony of a witness on a trial in the probate court is not preserved by a bill of exceptions, neither on the second trial of a case in the circuit court is there any bill of exceptions of the proceedings had on a former trial. But in both cases it is competent to prove on the second trial what was said by a party testifying against his interest on the first trial, the only difference between showing this by witnesses and showing it by bill of exceptions or deposition being one of method of proof. This also answers the argument of respondent that the decisions of our supreme court were rested on the fact that the evidence of the waiver of the statutory incompetency of the party was in the permanent form of a deposition or a bill of exceptions. Our conclusion is that when the executor removed the incompetency of the claimant to testify by his cross-examination of her as to the basis of the account in suit in the probate court, that he could not on a subsequent trial in the same cause in the circuit court, when she was called to testify on her own behalf, object to her competency so to do as to all matters within the range-of his previous cross-examination in the probate court.

The result is that the judgment in this case is reversed and the cause remanded to be tried in conformity with this opinion.

All concur.