Uhler v. Harbaugh , 110 Or. 609 ( 1924 )

McBRIDE, C. J.

Conceding, without deciding, that a man can make an oral contract for services to be performed after his death which shall bind his estate independently, as in this instance, for a period of nearly twenty years, we are of the opinion that there was not sufficient evidence to go to the jury in support of this claim.

Section 1241, Or. L., among other things, provides as follows:

“* * No claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant.”

This statute has been construed by this court several times in the cases to which we now call attention. In Harding v. Grim, 25 Or. 506, 508 (36 Pac. 634), Mr. Justice Bean, commenting upon the above-quoted section of our statute, said:

“At the trial the plaintiff was nonsuited, on motion of the defendant, because he had not proven a cause sufficient to be submitted to the jury, by evidence other than his own, as required by Section 1134, Hill’s Code. This section, among other things, provides, ‘that no claim which shall have been rejected by the executor or administrator * * shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant.’ The effect of this statute is that, while the claimant is a competent witness in an action against an executor or administrator upon a claim or demand against the estate of the deceased, he cannot prevail in the action unless he proves his case by some competent or satisfactory evidence other than the testimony of himself. His testimony may be used, perhaps, to corroborate other evidence in the case, but it is not sufficient, in itself, to establish his claim. There must be evidence tending to support the action, independent of his testimony, sufficient to go to the jury, and upon which the jury or other trier of the fact would be authorized to find in his favor. As a consequence, it was incumbent on the plaintiff in this case to furnish some competent evidence tending to support his claim, other than his own testimony; and unless he did so, the nonsuit was properly granted.”

Later, in Goltra v. Penland, 45 Or. 254, 264 (77 Pac. 129, 133), the same justice used the following language :

it * * rppg g-tatute, therefore, must be construed according to its spirit and purpose, and the evil sought to be remedied, rather than the technical meaning of the words used. Looking at it from this ¡standpoint, and keeping in full recognition its purpose, which is to avoid the injustice which might follow from the allowance of a claim against the estate of a deceased person on the testimony of the claimant alone, the reasonable interpretation seems to be that the testimony of the claimant is not sufficient, but there must be other material and pertinent testimony or corroborating that given by him, sufficient to go to the jury and upon which it might find a verdict, so that the decision may rest upon some evidence _ other than that of the claimant. This is substantially the construction of the statute indicated in Quinn v. Gross, 24 Or. 147, 151 (33 Pac. 535), and Harding v. Grim, 25 Or. 506 (36 Pac. 634), although in neither of these cases was the direct question presented. * * ”

And, in Re Estate of Banzer, 106 Or. 654, 657 (213 Pac. 406, 408), Mr. Justice Burnett, speaking for the court and commenting upon the two opinions above cited, used this language:

"The clear import of these precedents is that the claimant in such cases must make out a prima facie case, sufficient to sustain a verdict in his behalf, independent of his own testimony; or, putting it extravagantly, he must make out such a prima facie case before he is entitled to open his mouth as a witness. Unless that situation is made to appear independent of his own declarations as a witness as an essential of his contention, he cannot fortify it by his own testimony for it is not present to be fortified.”

In view of these decisions let us assume that no testimony had been adduced except that of Stewart above quoted and the fact that he accompanied Mrs. Kentner to Oregon and performed the services shown in the testimony adduced by plaintiff. Would the jury be justified in finding that these services were performed in pursuance of an executory, oral contract whereby Mr. Kentner assumed to bind his estate for their payment? Would it, independently, be any evidence of such a contract? Assuredly not. And yet, under the authority of the decisions above quoted, unless a verdict upon such evidence could have been upheld, the testimony of the plaintiff was of no value. It does not follow, where other evidence sufficient to justify a verdict is introduced, that the testimony of the plaintiff is valueless. "Evidence sufficient to justify a verdict” is one thing, and that which may in effect produce a verdict is another. Having laid a foundation for his recovery by producing evidence upon the strength of which a jury may find a verdict in his favor, the claimant may then buttress and reinforce his case by his own evidence so as to render it more probable that a jury will so find. It should be remembered that at common law, and in many of the states by statute, a claimant against the estate of a deceased person is not permitted to testify. In view of the fact that the lips of an alleged promisor are sealed by death, and of the frequent attempts of unscrupulous persons to palm off fictitious claims under such circumstances, lawmakers have been and courts should be zealous to protect estates from the consequences of such attempts, and hence the rule adopted by our statute as construed in our opinions above cited.

It was earnestly and ingeniously argued by the able counsel for plaintiff that Section 1241, Or. L., is repealed by virtue of subdivision 3-c of Article VII of our present Constitution, which provides, among other matters, that “ * # no fact tried by a jury shall be otherwise re-examined in any court of this state unless the court can affirmatively say there is no evidence to support the verdict. * * ” We are of the opinion that the sole intent of this provision was to prevent judges from deciding upon the weight of evidence otherwise legally sufficient, and was not intended to interfere with the right of the legislature to prescribe the quantum of evidence necessary to establish some particular fact. The construction given it by counsel would compel the court to uphold a verdict in a prosecution for perjury rendered upon the unsupported testimony of one witness, or of any other crime upon the uncorroborated testimony of an accomplice, and to permit usage or treason to be established on like testimony. Such was evidently not the intent of the framers of the Constitution: Consor v. Andrew, 61 Or. 483 (123 Pac. 46).

Counsel has frankly stated that the testimony adduced was all that he was able to obtain as to the existence of the contract, and this being so, we deem it unnecessary to consider the other points raised in the briefs of counsel. The order of the Circuit Court is affirmed. Affirmed.

Bean, Band and Coshow, JJ., concur.