Larkin, John L.

English

University of Kentucky

Kentucky Law JournalVolume 38 | Issue 3 Article 81950Evidence--Admissibility of a Survivor's TestimonyUnder the Kentucky Dead Man's StatuteJohn L. LarkinUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Evidence CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationLarkin, John L. (1950) "Evidence--Admissibility of a Survivor's Testimony Under the Kentucky Dead Man's Statute," Kentucky LawJournal: Vol. 38 : Iss. 3 , Article 8.Available at: https://uknowledge.uky.edu/klj/vol38/iss3/8STUDENT NOTES AND COUMMENTSEVIDENCE-ADMISSIBILITY OF A SURVIVOR'S TESTIMONY UNDERTHE KENTUCKY DEAD MAN'S STATUTEIn a suit brought in Kentucky on a contract action against the estate of adecedent, the testimony of the survivor of the transaction is inadmissible. How-ever, if the proceeding against the estate of the decedent is founded in tort, thetestimony of the survivor is admissible.'The purpose of this note is to review the history concerning the developmentof the dead man's statutes, to investigate the dead man s statute in Kentucky, andto suggest a solution to the problems ansing as a result of the application of theKentucky dead man's statute.Under common law rules, a person who had a pecumary interest in a causeof action was disqualified under the general rules of incompetency.2 The funda-mental rationalization of the disqualification was that the pecumary interest wouldcause an interested party to give perjured testimony and thereby induce the juryto reach an improper verdict.'The common law jurist followed this rule, evidently believing that the jurycould not detect perjured testimony when fully aware that the party had a pecun-iary interest in the action.' As a result of the exclusion of the testimony, thecourts were ignonng those claimants who were honest, thus following the falseassumption that all men are dishonest when tempted with pecumary gain. Thesefallacies, however, were later recognized and statutory provisions permitted theparty or witness to testify."The abolition of the disqualification of persons having a pecuniary interest\v'as not uithout sonic repercussion. In abrogating the common law rule, thelegislature created an exception to the interest precept and excluded testimony ofthe survivor of a transaction in a legal proceeding against the estate of a dead man.'The exception was created because it was believed that if the survivor gave isversion of the facts it would be impossible to expose omissions, mistakes, andfalsehoods.- Furthermore, it was hoped to prevent dishonest claimants fromplundenng the estates of the deceased."This statutory exception, the so-called dead man s statute, was adopted bythe Kentucky Leislature. The code provision disqualifying the survivors testi-mony provided, " no person shall testify for himself concerning any verbalstatement of, or any transaction with, or any act done or omitted to be done by,an infant under fourteen years of age, or by one who is of unsound mind or deadwhen the testimony is offered to be given, except for the purpose, and to theI" no person shall testify for himself concerning any verbal statement of,or any transaction with, or any act done or omitted to be done by an infant underfourteen years of age, or by one who is of unsound mind or dead when the testi-mony is offered to be given except for the purpose, and to the extent, of affectingone who is living, and who, when over fourteen years of age and of sound mind,heard such statement, or was present when such transaction took place, or whensmich act was done or omitted, and except 'in actions for personal injury, death ordamage to property by negligence or tortious acts " KY. CODES, CIV. PROC. sec.606 (2) (1948)."5 CHAIBERAYNr, A TREATISE ON THE MODERN LAW OF EVIDENCE sec. 3669 (1911)."See Burk v. Louisville & Nashville R. R., 219 Ky. 163, 165, 292 S. W 486, 487(1926): 4 JONFS, COMMENTARIES ON TaE LAW OF EVIDENCE sec. 725 (1914).'See Burk v. Louisville & Nashville R. R., 219 Ky. 163, 165, 292 S. WV. 486-187 (1926).r5 C-AMBERLAYNE, op. cit. supra note 2, sec. 3669 (1911).5 CHANIBFRLAYNF, Op. cit. supra note 2, sec. 3670 (1911).I JONIS, COmMENTARIFS ON' THE LAW OF EVIDENCE sec. 77,3 (1914).- 1td.KENTUCKY LAW JOURNALextent, of affecting one who As living, and who, when over fourteen years of ageand of sound mind, heard such statement, or who was present when such trans-action took place, or when such act was done or omitted "0 It is noticed atthe time of the adoption of the code provision, all testimony concerning a trans-action with the three specified classes was incompetent in an action by the sur-vivor against the estate of either. Prior to any modification of this code pro-vision, the Court of Appeals had expressed its dissatisfaction with its terms. InBurk v. Louisville & Nashville Railroad Company," the plaintiff sued the defendantrailroad for injury received due to the alleged negligence of the defendant's engi-neer. Between the first and second trial of the case, the engineer died and thedefendant relied upon an earlier Kentucky caseu in which the court refused toallow the injured party s testimony where the defendant's engineer had died be-fore the trial. In order to circumvent the applicability of the statute, the courtheld that the defendant railroad was present through the conductor when the actoccurred and the testimony was admissible even though the engineer who causedthe injury had since died. The court, after reviewing various legal writers criti-cisms of the dead mans statute, stated: "The evident wishes of these great mendo not make the law, but when we consider what they have said, and rememberthat each of the acts of the legislative branch of our government upon this subjecthas been an enabling act, we are persuaded that every witness offered should beallowed to testify, unless his exclusion is clearly required by our statutes."'Six years after the Burk case in 1926, the dead man's statute was amended."The amendment excepted actions for personal injury, and death or damage toproperty by negligence or tortious acts." Available material concerning the amend-ment fails to reveal the basic reasoning for allowing testimony concerning an actionfounded in tort, while excluding testimony in other actions against the estate ofthe deceased. An influential member of the legislature at the time the amend-ment was adopted has suggested that the primary reason for its enactment wasto allow testimony of the survivor of an automobile accident, as many claims wereprevented because the surviving party was the sole witness.The code provision as it now exists allows the survivor s testimony if thegravamen"' of the action sounds in tort but the testimony is inadmissible if thegravamen is in contract." This being true, in many factual situations, incon-sistencies will result in the application of the code provision. Such an inconsis-tency might arise where a contract cause of action is co-existent with a tort causeof action." For instance, where a carrier-passenger relationship exists, if thepassenger is injured through the negligence of the earner he may sue for breachof contract or elect to sue in tort for the wrongful act."A more interesting situation arises where the tort committed has resulted inthe unjust enrichment of the survivor at the expense of the deceased."0 The per-'KY. CODES, CIv. PROC. sec 606 (2) (1876).10219 Ky. 163, 292 S. V 486 (1926).iIllinois Central R. R. v. Martin, 3 Ky. L. Rep. 666, 110 S. W 815 (1908)."Burk v. Louisville S Nashville R. R., 219 Ky. 163, 165, 292 S. IV 486,487 (1926)."2Ky. Acts c. 59, sec. 1 (1932).Ibid."Ponieroy points out the difficulty of determining the gravamen of an action. i t is sometimes impossible to decide which class of' allegationsconstitute the gravamen of the action ,and which is to be regarded as surplusage."POEIEROY, CODE RE-MDIES sec. 452 (5th ed. 1929).16 Browns, Bell & Cowgill v. Soper, 287 Ky. 17. 152 S. IV 2d 278 (1941)."1 PoimRoy, CODE REMEDIES sec. 458 (5th ed. 1929).11 PROSSER, TORTS 203 (1941)."'Id. at 1118.STUDENT NOTES AND COMM~tENTSsonal representative of the deceased may choose which theory to pursue. He maybring an action in quasi contract and although no actual contract exists, the actionmust proceed upon the contract theory as a contract is implied by law.' Testi-mony of the survivor in this instance would be inadmissible. However, the per-sonal representative may frame his cause of action in tort and the testimony ofthe survivor would be admissible under the exception excluding tort actions.Therefore, in these situations as vell as others,"' where a tort action is co-existent with a contract action and one of the parties has died subsequent to thetransaction, it may be contended that -the manner in which the cause of action isframed would be the determining factor as to whether the testimony would beadmitted.Furthermore, the exception of the code pertaining to tort actions has proveddifficult for the courts to interpret and apply.' In a recent federal case," thecourt through dictum suggested that flus difficulty could be eliminated by basingthe admissibilitv of the evidence upon what the statement itself pertained to.". If the statement was made in connection with a wrongful act and addresseditself to some phase of tort, it seemingly is competent. If it addressed itself tothe contract, to a construction of or a waiver or a consideration of its terms, theexception created by the amendment does not apply and the statement is incom-petent." '  To admit the testimony on this theory is questionable. By the expressterms of the amendment, is not the Legislature concerned with the form of theaction as pleaded? The exception provides "except in actions for personal injury,death or damage to property by negligence or tortious acts." The emphasisplaced upon "actions" would seem to refer to the form of the action as pleaded.Moreover, in the same case a part of the survivor s statements coming within theexception would be admissible and the other statements inadmissible. It is doubtedvhether this situation would eliminate the difficulty in applying the exception.Due to the existing fallacies, it is contended that a definite change should bemade regarding the Kentucky dead man s statute. It is suggested that either thetort exception be repealed and the testimony of the survivor be prohibited in alleases; or else the code provision should be repealed in its entirety and the testimonyof the survivor be admitted in all cases. It is contended that the latter solutionis the proper one to adopt. " a rule of evidence at one time thought neces-sarv to the ascertainment of truth should yield to the experience of a succeedinggeneration whenever that experience has clearly demonstrated the fallacy or un-wsdon of the old rule."' It is believed that two centuries of experience derivedfrom the application of the dead man s statute have shown the fallacy of sucha rule.The statutes have not aided in protecting the estates of the deceased. Thefalse claimant, in spite of the dead man s statute, if determined to prey upon theestate could make out a case sufficient to sustain a decision by getting testimonybefore the tribunal that is not within the exclusion. Therefore, the code pro-vision has not to any great extent prevented the dishonest party from establishinghis claim, and yet, it has prevented the truthful claimant from establishing ajustifiable demand.To permit the survivor of any transaction to testify will not result m largescale perjury. This has been proved in Kentucky where the testimony is admissible'lid. at 1119.-'* d. at 204.'See Niles v. Luttrell, 61 F. Supp. 778. 783 (W D. Ky. 1945).-Niles v. Luttrell. 61 F Supp. 778 (W D. Kv. 194I5).id. at 783.:'Funk v. United States, 290 U. S. 371, 381 (1933).KENTUCKY LAW JOURNALin tort cases. The cases fail to reveal any indication that the estates of the de-ceased have been attacked by false claimants.' It is only reasonable and logicalthat in those cases where the survivor gives his version of the facts, the court andjury will realize the peculiar situation and be extremely cautious in consideringsuch testimony in arriving at a verdict.Furthermore, even though the testimony of the survivor is admitted, therepresentative of the estate of the deceased is not left helpless against the survivor.In most cases, a substantial amount of evidence will be available to the representa-tive of the deceased. Cross examination will also prove effective in revealinginconsistencies and falsehoods in the survivor s testimony. Moreover, since humannature is such that the dishonest statements of a person soon become generallyevident, the reputation of the survivor for truth and veracity may be presented tothe jury to discredit the survivors testimony. After balancing the good and thebad effects of the dead man s statute, it is contended that the Kentucky statuteshould be repealed: thereby making the testimony of the survivor concerning atransaction with a deceased person admissible in evidence.In conclusion, it is submitted that the dead man's statute in Kentucky worksan injustice in many situations. The need for a change is evident, and in orderto accomplish the desired result, Section 606 (2) should be repealed in its en-tirety and testimony of the survivor of a transaction with a deceased person shouldbe admitted i any cause of action against the latter s estate.JOHN J. LAiuaN- Browns, Bell & Cowgill v. Soper, 287 Ky. 17 152-S. W. 2d 278 (1941); Hughesv. Bates' Adm'r., 278 Ky. 592, 129 S. IV 2d 138 (1939); Kinsella v. Meyer's Adm'r.,267 Ky. 508, 102 S. W 2d 974 (1937); Melton's Adm'x. v. Robinson, 270 Ky. 621,110 S. V 2d 428 (1937); City of Catlettsburg v. Sutherland's Adm'r., 261 Ky. 535,88 S. W 2d 19 (1935); Colston's Adm'r. v. Cincinnati, N. 0. & T P R. R., 253 Ky.512, 69 S. W 2d 1072 (1934); Warfield Natural Gas Co. v. Clark's Adm'x., 257 Ky.724, 79 S. 1V 2d 21 (1934).

Evidence--Admissibility of a Survivor\u27s Testimony Under the Kentucky Dead Man\u27s Statute

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=3865&amp;context=klj

Evidence--Admissibility of a Survivor\u27s Testimony Under the Kentucky Dead Man\u27s Statute

Abstract

Similar works

Full text

Available Versions

University of Kentucky