Cox v. Williamson

MR. JUSTICE ANGSTMAN,

dissenting:

I think plaintiff should have been permitted to give her version of the contract alleged to have been made between her and Mr. Seiden. Without it she was unable to make out a prima facie case and that is the test to be applied in determining whether an injustice will be done without such testimony, Roy v. King’s Estate, 55 Mont. 567, 179 Pac. 821; Wunderlich v. Holt, 86 Mont. 260, 283 Pac. 423; Rowe v. Eggum, 107 Mont. 378, 87 Pac. (2d) 189, particularly where as in this case there was ample evidence from the witness Roland Benneeke and others from which it was and is reasonable to conclude that there is credibility in plaintiff’s claim. Sharp v. Sharp, 115 Mont. 35, 139 Pac. (2d) 235; Ahlquist v. Pinski, 120 Mont. 355, 185 Pac. (2d) 499. Mr. Bennecke testified that on three different occasions Mr. Seiden told him Mrs. Cox was going to receive the house and contents and five thousand dollars.

Rehearing denied March 2nd, 1951.

My associates stress the weakness of evidence of a party as to communications with one since deceased. In spite of the weakness of such evidence the legislature by Chapter 66, Laws of 1909, now R. C. M. 1947, section 93-701-3, has said that it is proper to receive it “when it appears to the court that without the testimony of the witness injustice will be done. ’ ’ To hold that such evidence is always so weak that it should not be received is to thwart the legislative will.

The question of the admissibility of evidence presents an entirely different question from one going to the weight to be given to it. I think any discussion in this case of the weight of the offered evidence is premature.

The weight of the evidence is determined after it is received and depends much upon the appearance and candor of the witness and her ability to withstand cross-examination. My position is that plaintiff should have been permitted to offer proof of her contract as she alleged it.

Without being permitted to offer proof, her claim is condemned without the opportunity of a hearing, since she could not make out a prima facie case otherwise, and hence I think an injustice is done within the meaning of R. C. M. 1947, section 93-701-3. If this case does not justify admission of evidence of communications with one since deceased, then the last two lines of the above statute are meaningless.

The fact that decedent made some provision for plaintiff in his will is unimportant if in fact there was a promise to give more in consideration for the services rendered. I think a new trial should be had and the offered evidence received.