COMPETENCY
UNDER ARTICLE
WM, DAVID
FALLS
3716
COMPETENCY UNDER ARTICLE 3716
The courts of the State of Texas strictly construe Article
3716, Texas Revised Civil Statutes, so as to allow the admission
of all relevant testimony concerning a claim or defense. Article
3716 is most commonly known as the Texas version of the Dead
Man Statute.
The statute deals with the competency of a witness to testify to transactions with or statements made by a decedent. The Dead
Man Statute provides the exception to the general rule of evidence
that no person shall be incompetent to testify because he is a party
to a suit or proceeding or interested in the issue tried.
In order to understand the present statutory rule on transactions with a decedent we must first consider the Common Law Rule
concerning interested parties. At Common Law, parties to a suit and
persons interested in the action were absolutely disqualified from
testifying. This rule was first introduced in the 1500's. The reason
for the disqualification according to Professor Wigmore was because
of the belief that anyone who had an interest in the action would not
testify truthfully and therefore should be disqualified from testifying.
This made the parties incompetent to offer evidence.
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As the law of evidence developed, public opinion changed
and in was finally determined that the disqualification of interested
persons and parties was unjustified. In Texas, as in most other
states, the disqualification was removed by statute. Texas removed
the disqualification as to both interested persons and parties by the
same statute. Acts 1871, c. 104, pg. 108 §1, removed the disqualification. Article 3714, Vernon's Ann. Civ. Stat., now states,
"No person shall be Incompetent to testify on account of color, nor
because he is a party to a suit or proceeding or interested in the issue
to be tried. "
In removing the disqualification of interest, the Texas statute
created one exception which is Article 3716, the Dead Man's Statute.
By this statute, the survivor of a transaction with a decedent is rendered incompetent to testify against the estate or its representative.
The purpose for this continued disqualification was to guard against
the giving of false testimony. Since the mouth of the decedent was
forever sealed by death, then the survivor of a transaction would not
be allowed to give only his version of the transaction.
In the 19th Century, the interest disqualifications were modified
or removed and there is now no state in which interest is a general
disqualification. Wigmore, §488.
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The Federal Courts will also apply the removal of disqualification statutes under Rule 43, Federal Rules of Civil Procedure.
It is provided that the competency of witnesses in civil actions shall
be determined by the law of the state where the federal court is sitting.
A Federal Court sitting in Texas will look to Articles 3714 and 3716 to
determine the competency of a witness to give testimony in a civil suit.
I.
The Dead Man Statute is first limited in its application by only
applying in civil cases. The statute, Article 3716, is not applicable
to criminal prosecutions. Green v. State, 221 S. W. 2d 612 (1949).
All persons are competent to testify when a person is charged with a
violation of the criminal laws and a transaction with or statement by a
decedent is relevant to the defense or the prosecution of the individual.
The main concern of the legislature in enacting Article 3716
was for economic reasons. This is signified by the limitation of the
statute to citfil matters. It is also understandable on the basis of the
history of the interest disqualifications. The disqualification was to
prevent a person with some "interest" in the action from giving testimony in his favor to gain in some economic form. For example, if a
party is suing on the basis of an oral transfer of property then he was
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required to prove such transfer by introducing evidence of the transaction other than his personal testimony that the transaction occurred
or that the statement making the transfer was made to him. This was
thought to prevent false utterances by a party who would benefit if no
other evidence was obtainable.
This concern extends to the present disqualification under the
Texas Dead Man Statute. The surviving party to a transaction is,
in certain cases, forbidden from asserting the transaction or statements made between himself and the decedent to prevent the survivor
from benefiting as a result of the death of one party to the transaction.
The statute in its own terms provides several obvious limitations to its application. For example, the statute states that it is to be
used in "actions by or against executors, administrators, or guardians. "
The statute does not apply if the suit is not "by or against" such representative.
The statute, Article 3716, as it now appears states as follows:
"In actions by or against executors, administrators,
or guardians, in which judgment may be rendered for or
against them as such, neither party shall be allowed to
testify against the others as to any transaction with, or
statement by, the testator, intestate or ward, unless
called to testify thereto by the opposite party; and the
provisions of this article shall extend to and include all
actions by or against the heirs or legal representatives
of a decedent arising out of any transactions with such
decedent. "
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It should be pointed out that this statute, although commonly
referred to as the Dead Man Statute, also applies to actions by or
against the guardian of a ward, as well as to actions by or against
the heirs or a legal representative of the decedent. Both parties to
an action are prohibitied from testifying and are protected against
testimony being given by the opposite party.
One important matter to consider is that for the provisions of
the statute to apply the party must be named in his legal representative
capacity. Not all persons interested in the outcome of the litigation
come within the terms of the statute. The statute does not extend to
legatees and devisees, since they are not included within the words
heir or legal representatives as used in the statute. Newton v. Newton,
14 S. W. 157 (1890), Mitchell v. Mitchell, 15 S. W. 705 (1891). In an
interpleader suit filed by American National Insurance Company against
the named beneficiary and also against the administrator of the estate,
the court held the Dead Man Statute was not applicable because the
beneficiary was not an heir or legal representative within the terms of
the statute. Also, the interest of the administrator would not arise
unless it was determined that the beneficiary had no right to the proceeds.
There would result a judgment for or against the beneficiary. The judgment would in actuality determine the question of the estate's interest in
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Che proceeds, but since the suit would result only in a judgment for
or against the beneficiary, the statutory disqualification would not
apply. Sharp v. American National Ins. Co., 126 S. W. 2d 50 (1939).
In Field v. Field, et al., 87 S. W. 728 (1905), the Court of
Civil Appeals was called on to decide whether the Dead Man Statute,
then Rev. St. 1895, Art. 2302, applied in a suit by Mrs. Field, filed
in her own behalf and as guardian of her insane husband, P. B. Field,
against Mrs. Mattie Brecheen and her children, to recover title and
possession of a tract of 103 acres of land situated in Collin County. The
defendants denied all interest to the land except a certain portion that
defendants claimed as a result of an oral gift from P. B. Field to John
Field, husband of Mrs. Brecheen and father of the minor children.
John Field was deceased prior to the time of the suit.
The Court of Civil Appeals held that "Rev. St. 1895, Art. 2302,
. . ., was not applicable where plaintiff sued not only as guardian, but
also in her individual right, and defendant witness was not asserting
any right as heir of her deceased husband, defendant's ancestor, to the
land in question. "
Wooters v. Hale, 19 S. W. 134 (1892 ), also shows a similar
situation. In that case a son was sued for land given him by his father
by parol contract. The suit was brought after the father's death. The
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court held that the son, even as a party-defendant, was a competent
witness to prove the transaction between himself and the decedent
since he was not claiming as an heir or legal representative.
The list of cases goes on and on, but the rule is the same in
all. If the party is not suing or being sued in his capacity as executor,
administrator, guardian of award, heir or legal representative, or if
so suing or being sued, he is also joined individually, then the disqualification statute does not apply.
II.
Another limitation written into the statute is the requirement
that the proceeding must be one "in which a judgment may be rendered
for or against them as such. " This clause means that the statute does
not apply when a suit against an executor, administration, guardian,
heir or legal representative cannot result in a judgment against him
in that capacity.
An example of this exception was noted in Walton, et al. v.
Walton, 191 S. W. 188 (1916). That case involved a contested application by an alleged common-law wife to be appointed administratrix of
the deceased-husband's estate. The court considered the Dead Man
Statute in determining whether the alleged common-law wife could testify
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as to statements made by the decedent in publishing their marriage.
After citing the statute, the Court of Civil Appeals stated:
"Clearing-,\we think, the proceeding for the appointment of an administrator is not an action by or against
executors, administrators or guardians in which judgment
may be rendered against them as such, nor is it an action
by or against the heirs or legal representatives of a decedent. It is a contest between certain parties for the right
to administer upon an estate, and whatever judgment might
be rendered in the proceeding would not be for or against
either party as executor, administrator, guardian, heir,
or legal representative, although such trust relation might
be created by the decree rendered. In so far as the witness
Nora Walton is concerned, any right which she had to administer upon the estate grows out of her relation to the
deceased as 'surviving wife, ' and not as an heir. "
In quoting from Ingersol v. McWillie, 9 Tex. Civ. App. 543,
30 S. W. 56 (writ of error ref'd.), the Court in Walton went on to state:
"It has been held by our Supreme Court that the
terms of the statute will not be extended so as to embrace
those not specially mentioned therein. In the case of
Newton v. Newton, 77 Tex. 508, 14 S. W. 157, it was
held by Judge Gaines that the provisions of article 2248,
(now Art. 3716) could not be extended . . . to embrace
legatees or devisees. The court says: 'This court has
held that the exceptions could not be extended by implication to a class of persons not named, although the reason
for embracing them was equally as strong as those which
existed for including the persons expressly designated.
Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers,
47 Tex. 25.' "
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III.
Another exception to the Dead Man Statute arises when a party witness disclaims his interest in the property made the subject matter
of the suit.
James v. James, 81 Tex. 373, 16 S. W. 1087, is evidence of
the general rule. In that case one party to the suit was a daughter of
the decedent. She was claiming under a parol gift from her deceased
father and the court held that she was incompetent to prove the transaction through which she claimed. The court also held she was incompetent
to testify to the same transaction in behalf of her co-claimants under the
same alleged gift.
However, in Richards v. Hartley, 194 S. W. 478 (1917), a
different result was reached. The Court of Civil Appeals held that the
testimony of deceased's daughter, in a partition suit in which she was
a defendant, although orginally inadmissible, was rendered admissible
when she disclaimed interest in the property which was the subject matter of the suit.
In Richards, the daughter and party defendant first adopted the
pleadings of her co-defendants, "but, during a suspension of the trial,
disclaimed all interest in the land, and her pleading so stood when
judgment was rendered. " Mrs. Baker, the daughter, filed her disclaimer
and was called as a witness. The trial court continued to exclude
her testimony.
The Court of Civil Appeals held that such exclusion was
error. The court stated that:
"While judgment would be necessarily rendered against
her for one or the other of the contestants, she had no
such interest in the result as contemplated by the statutes.
. .. For that reason, we conclude the evidence should
have been formally admitted and considered by the court. "
In this case as others, one means of getting the barred testimony
admitted would be a disclaimer by one of the parties. This removes
the interest and supposedly "cleanses" the witness of the likelihood of
giving false testimony due to his interest in the action.
IV.
It has also been stated that the Dead Man Statute is not applicable
if the decedent could not, even if alive at the time of the trial, of his own
knowledge, contradict the objectional testimony. One of the purposes of
the statute is to put the parties before the court in a position of equality
and to deny to one party evidence which cannot be questioned or denied
only because of the death of one of the actors.
In Sears, Roebuck & Co. v. Jones, 303 S. W. 2d 432 ( reh. denied,
err. ref'd. n. r. e. (1957), the court held the disqualification of the Dead
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Man Statute would not be applied. The court held that the decedent,
even if alive at the time of the trial, would not have been able to
contest the witness' statement because of the intoxicated condition of
the decedent at the time of the accident. The court reasoned that the
testimony should not be excluded merely because of death of one of
the actors since the actor could not have testified had he survived.
The Sears case involved a rear-end collision. The decedent
was the driver of the truck left parked on the roadway. The testimony
sought to be included was that of the plaintiff wherein he detailed the
circumstances surrounding the collision. The decedent had also given
deposition testimony prior to the time of trial in which he testified that
"he did not remember anything concerning the accident, as he was intoxicated, and the last thing he remembered was leaving Greenville. "
303 S. W. 2d 432, at 436.
Appellants, in their brief, stated:
" ' There being no facts showing any reason to
disregard the specific provisions of Art. 3716, the
admission by the trial court of the testimony of appellee
as to the occurrence of the collision clearly was error
which would require a remand of this case to the trial
court for further proceedings in accordance with the law. ' "
The Waco Court of Civil Appeals rejected the Appellant's contention.
The court stated:
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"It is well settled that Art. 3716, Vernon's
Civ. Stat. , should be strictly construed. Pugh v.
Turner, 145 Tex. 292, 197 S. W. 2d 822, 172 A.L.R.
707; Huttov. Cook, 139 Tex. 571, 164 S. W. 2d 513.
The object of this statute is to place the parties on a
parity and to prevent one of them, to the detriment of
the other, from taking an unfair advantage of the fact
that the lips of the deceased have been sealed by death.
14 Tex. Jur. p. 319; Holland v. Nimity, 111 Tex. 419,
232 S. W. 298; Whatley v. What ley, Tex. Civ. App.,
169 S. W. 2d 989 (err. ref'd.)."
The court went on to say:
"The lips of Truitt as to the circumstances surrounding
the collision were not closed primarily because of his
death, but because, according to his own testimony which
was introduced on behalf of appellants, he had become
intoxicated and could not remember anything after leaving
Greenville. "
". . .The proper test in determining whether testimony
violates the provision of this article of the statutes is
whether or not, if the witness testfied falsely, the deceased, if living, could have contradicted such false
testimony of his own knowledge. Huff v. Huff, Tex. Civ.
App., 72 S. W. 2d 675 (er. dis.); Prichard~v7 Bickley,
Tex.-Civ. App., 175 S. W. 2d 614 (er. ref. w. m.);
Dakoff v. National Bank of Commerce, Tex. Civ. App.,
254 S. W. 2d 550 (er. ref.); Punch v. Gerlach, Tex. Civ.
App., 267 S. W. 2d 182 (er. ref. n . r . e . ) . "
Further, the court stated that the evidence was admissible in the
trial of the cause of action which had been asserted against Sears, even
though it might have been incompetent in the suit asserted against the
administratrix. Since neither party requested the court to limit the testimony
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to the cause of action asserted against Sears, the evidence was admissible and could be considered by the jury as to both parties.
It is obvious that the court was considering a close question of
law in this case. The court reasoned that the plaintiff should not be
limited in his testimony purely because of the death of one of the partiesdefendant. The testimony by the decedent in this matter would have been
no different had he survived because his state of intoxication was to such
a degree at the time of the accident in question that he had no personal
knowledge of the accident. The reasoning behind the Dead Man's Statute
was not violated as the court states because the lips of decedent were
sealed by intoxication, not by his death. It must also be noted in this
case that the decedent's deposition had been taken prior to the time of
his death, thereby preserving his testimony for trial. In such deposition
the decedent had stated that he had no memory of the accident made the
basis of the lawsuit. The court most likely considered this fact in determining that the Dead Man's Statute would not be violated. It seems that
this exception to the Dead Man's Statute will be very limited to cases
having a similar fact situation to the Sears v. Jones case.
V.
The next obvious limitation on the Dead Man' s Statute as included
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in the statute by the wording "unless called to testify thereto by the
opposite party. " Art. 3716, Ver. Ann. Civ. Stat.
"Utilizing discovery procedures involving interrogation of a party who would be incompetent to testify in
his own behalf because of the pi-ohibition of the 'Dead Man'
Statute presents the risk that the protection afforded by
the statute to the interrogating party may be deemed to be
waived thereby, so that the interrogated party's incompetency
under the statute would be removed and he would be free to
testify fully at the trial concerning the matters inquired about
in the discovery proceedings. " Modern Texas Discovery,
V. 2, §13.01, p. 185.
Waiver can result from any of the discovery procedures commonly used
in Texas courts, including deposition of the opposite party, requests
for admissions, interrogatories. In all of these forms of discovery a
party may be called to testify by the opposite party to the transaction
with, or statement by, the decedent or ward. The Supreme Court in
Chandlery. Wellborn, 156 Tex. 312, 294 S. W. 2d 801 (1956), considered
the position of the party who is called upon to be deposed and who submits
cross-interrogatories or cross examines a witness on the same subject.
The Supreme Court says the party should not be held to have waived the
Dead Man Statute merely by cross examining the witness because such
would put the party in a perilous position of either waiving the statute or
foregoing the right of cross examination. The Supreme Court stated:
"It is well settled that cross-examination of a witness
as to testimony improperly admitted over objection does not
waive the right to complain of the error. Dallas Railway &
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Terminal Co. v. Bailey, 151 Tex. 359, 250 S. W. 2d 379.
And this is true even where the witness on cross-examination
repeats or restates some or all of the evidence given on direct
examination. Cathey v. Missouri, K. & T.Ry. of Texas, 104
Tex. 39, 133 S. W. 417, 33 LRA NS, 103. If an objection that
testimony contravenes art. 3716 is overruled, the party making
the objection should not be required to determine at his peril
whether reversible error has been committed and forego the
right of cross-examination if he does not wish to waive the statute.
And when the testimony of a witness is taken by deposition, a party should not be compelled to choose between waiving
either the statute or the right of cross-examination. There is
no ruling on the admissibility of deposition testimony until the
same is offered during the trial of the case. If the witness does not
testify in person at the trial, the opposite party must cross-examine
at the time the deposition is taken or not at all. We hold, therefore,
that when the testimony of a witness is taken by deposition and one
party initiates an inquiry relating to a transaction with the decedent, the opposite party does not waive the statute by simply
interrogating the witness with reference to the facts brought out
on direct examination. This rule preserves to the latter party the
right to object to the testimony at the trial of the case, and to have
the benefit of his cross-examination if the objection is overruled. "
The Beaumont Court of Civil Appeals has decided a similar case
in 1939, styled Dunn v. Peters, 126 S. W. 2d 997. That action involved
a suit for the title to certain timber, and judgment for damages for the
manufactured value of timber cut and removed from the land. The appellant
asserted that the trial court erred in permitting the witness, the son of the
decedent, to testify as to a transaction with his deceased father. The court
first stated that the son was not an interested party to the suit because the
father had conveyed the whole of the property to the sister of the witness,
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and, therefore, "he was not testifying to a transaction with his deceased father, nor as an heir to any interest in the property, but
simply as a witness as to what his father did on the management of
his own estate. " The Court went on to state as follows:
"If it could be said that the evidence was objectionable
for the reason urged by appellants, they waived their
objection by eliciting from the witness on cross
examination the same facts testified to by him on his
direct examination. Cox v. McClave, Tex. Civ. App. ,
22 S. W. 2d 961; Walkup v. Stone, Tex. Civ. App.,
73 S. W. 2d 912. "
Denbo v. Butler, 523 S. W. 2d 458 (1975), is another case involving
a party called to testify in a discovery proceeding. The Houston Court of
Civil Appeals was considering two points concerning discovery in this case.
The first point was whether the party asserting the Dead Man Statute had
waived any objection by submitting and filing interrogatories directed to
Mrs. Denbo concerning conversations between Mrs. Denbo and the decedent.
The court stated as follows:
"It was held in Burr is v. Levy, 302 S. W. 2d 171 (Tex.
Civ. App. 1957, writ ref'd. n. r. e.), that if a party
calls upon his adversary to make admissions under
Rule 169, which admissions relate to statements by or
transactions with the deceased, otherwise barred by the
provisions of Art. 3716, he has called such adverse party
to testify concerning such transactions or statements and
cannot thereafter object to further testimony by such party
under the bar set forth in the Dead Man's Statute; developing
a matter within the bar of the statute by deposition serves
to waive the bar and obtaining of such matter by means of
Rule 169 has the same effect. The well-settled rule based
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on the taking of a party's deposition was thus applied
to admissions under Rule 169; we perceive no basis
for holding that it does not apply to interrogatories
made under Rule 168."
It is therefore observed that a party can waive the Dean Man's
Statute in any form of discovery such as taking of a deposition, the
requests for admissions or the submitting and filing of written interrogatories.
The second question involved in the Denbo case was whether the
party submitting the interrogatories and waiving the Dead Man's Statute
as to Mrs. Denbo had further waived the Dead Man's Statute as to all
other opposite parties. The Court stated:
"The fact that a party questions one adverse party regarding a transaction and thereby waives the statute
as to such witness, does not constitute a waiver of the
statute as to other adverse parties who are not so
examined. Associate Justice Ruel Walker, The Dead
Man's Statute, 27 Tex. Bar. Journal 315, citing
Jackson v. Mimford's executor, 74 Tex. 104, 11 S. W.
1061 ,(1889). "
It is therefore obvious that for the Dead Man Statute to be waived as to a
particular opposite party or witness, such witness must be called to testify
to transactions with or statements made by the decedent and the mere
testimony by other witnesses as to the same matters does not waive the
statute. As in the Sears case, it seems to be obvious that this limitation
on the waiver of the Dead Man Statute will be scrutinized closely by the court
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considering the waiver in each particular case.
Another waiver case is Pinchback v. Pinchback, 352 S. W. 2d 151,
(1961). That case was a will contest involving the daughter of the decedent
as plaintiff against the second wife of the decedent and the two children of
the second marriage adopted by decedent. As to the waiver portion of the
case the Waco Court of Civil Appeals determined that the plaintiff had
waived objection on the grounds of the Dead Man's Statute by taking the
defendant's deposition twice in advance of trial and calling her and recalling
her as a witness and questioning her about conversations she had with the
decedent. A further point in the case was the charge to the jury concerning the Dead Man's Statute. The trial court charged the jury as follows:
" ' You are further instructed that in this case Patricia
E. Pinchback is not permitted by the law to give evidence
relating to any transaction or conversation with, or statement by, William P. Pinchback, deceased, unless the said
Patricia E. Pinchback is called to testify by the opposite
party. ' "
The Court of Civil Appeals stated that this instruction was proper and must
be given whenever the Dead Man Statute, Art. 3716, was asserted in a case.
The instruction followed the language of Rule 182a, Tex. Rules of Civil Procedure.
The last case that will be dealt with on the subject of waiver is
a 1968 Supreme Court decision, Seaman v. Seaman, 425 S. W. 2d 339.
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This case involved a suit on a promissory note brought by Margaret
Seaman in her own right and as the sole heir of her deceased husband,
Jonathan Seaman. The defendant was the sister-in-law of the plaintiff
and was sued individually and in her capacity as independent executrix
of the estate of her deceased husband, Irving Seaman, Jonathan's brother.
The defendant objected to the plaintiff's testimony offered for the purpose
of proving that the note was authentic. The objection was based upon
the fact that Art. 3716 barred testimony as to transactions with or statements by a deceased and therefore barred any testimony from the plaintiff
about her transactions with Jonathan or Irving. The Supreme Court stated:
"The objection was waived when the defendant subsequently called Margaret as a witness and examined her
with respect to additional facts and events which had
occurred both between her and Jonathan and between
her and Irving concerning the note, its collection, and
the filling up of the blanks. Chandler v. Wellborn, 156
Tex. 312, 294 S. W. 2d 801 (1956). "
The Supreme Court noted that the defendant's objection might have been
proper considering the testimony offered by the plaintiff had the defendant
not illicited the same facts and events and additional testimony from the
plaintiff when the plaintiff was called to testify as an adverse party-witness
by the defendant. The Supreme Court noted that such activity is within the
wording of Art. 3716, "unless called to testify thereto by the opposite party. "
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VI.
Closely associated to the waiver limitation is a rule promulgated by the courts that if a party fails to object or timely object for
the proper reason to the admissibility of the testimony under the Dead
Man's Statute, then he will be held to have waived the operation of the
statute.
The El Paso Court of Civil Appeals in the case styled Soltner v.
Flores, 335 S. W. 2d 771 (I960), considered a suit brought by plaintiff
who claimed a life estate in certain real estate as the result of a parol
gift from the deceased husband of the defendant. There was testimony
by the plaintiff that she had been employed by the decedent for a period
of around thirty-five years at very low salary and that during the time of
such employment, the decedent had purchased a house and at the time of
purchase the plaintiff had moved in the house and lived there up until
the time of trial. The evidence showed that plaintiff had never paid any
rent for the use of this house, either before the decedent's death or after.
The appellant-defendant in her brief to the Court of Civil Appeals alleged
in general terms that the trial court had erred in admitting evidence by
the plaintiff on matters concerning the deceased in violation of the Dead
Man Statute.
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The Court of Civil Appeals stated that the appellant's objections to the testimony had not been made in the proper form. The
court stated that the appellant's objections listed in her brief, "are
couched in general form and do not conform with Rule 322 or 418
(c), Texas Rules of Civil Procedure". The court held that to assert
the Dead Man Statute the appellant should have made specific objection
at the time of the offer of the testimony and should have specifically
excepted to and objected to the admission of such testimony and not
made a general objection to the actions of the trial court in admitting
the testimony and allowing the jury to consider such testimony.
The jury had answered all questions favorably to the plaintiff
and had found that the decedent had made a gift of a life estate of the
land to the plaintiff. It is possible that some of the plaintiff's testimony
was objectionable on the basis of the Dead Man Statute as being testimony as to transactions with or statements made by the decedent to the
plaintiff, but since the defendant failed to timely and properly object,
the objection was waived.
VII.
Another limitation on the application of the Dead Man Statute is
involved when a corporation is a party to the lawsuit and the decedent
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had been a stockholder or officer of the corporation or had transacted business with the corporation. A 1907 Court of Civil Appeals
case, Crosby v. First Presbyterian Church of El Paso, 99 S. W. 584,
involved the question of whether a member of the church could testifyas to conversations had between himself and the decedent concerning the
decedent's use of a certain tract of land. The First Presbyterian Church
was a religious corporation and therefore the objection to the testimony
was based on the theory that the members of the church corporation
were really the owners of the property conveyed to the church and a judgment for or against the corporation would be conclusive upon them, and
they were the real parties to the action. The court stated that the church
corporation as an entity owned the property and that the members had no
vested title in the property as long as the corporation existed. Therefore,
the court stated that the interest of the individual members at the time of
trial, whatever that interest might be, was "remote, uncertain and contingent and not such as to disqualify them as witnesses".
The members were therefore not incompetent under the Dead Man
Statute to testify as to transactions with or statements made by the decedent
concerning the property in question. The basis of the determination was
that the members were not real parties to the lawsuit and would not be
real parties to the suit unless the church corporation was dissolved. The
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court did not answer the question of whether the individual members
would have been allowed to testify as to transactions with or statements
made by the decedent had the contingency of dissolution been a fact, had
the church corporation already been dissolved at the time of trial.
VIII.
The last limitation to be discussed deals with whether a witness
has an actual "interest" in the outcome of the lawsuit such as to bring
him within the disqualification of the Dead Man Statute. This requirement
goes to whether the individual is a necessary party or merely a nominal
party to the lawsuit. In Lehman v. Krahl, 285 S. W. 2d 179 (1955), a
Texas Supreme Court discussed the Dead Man Statute and the interest
requirement to make a witness incompetent to testify. The Court stated
that the exclusionary objective of Art. 3716 is not directed against parties
with no real interest. Such parties are described as joined pro forma.
The Supreme Court was looking at the question of credibility as being the
basis for disqualification of the witness. The court determined that merely
because a person is joined as a party plaintiff or defendant in a lawsuit, it is
not sufficient reason to consider him not a credible witness to offer testimony in that lawsuit. An example noted by the Supreme Court is where a
husband is called to testify as to transactions with or statements made by
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a decedent which concerned the separate property of the witness-wife.
The court held that in such a case the husband would have no interest
in the outcome of the suit, other than the interest that a nominal party
would have. The court said that such interest would not be sufficient to
consider the husband not a credible witness.
In Roselle v. Smith, 324 S. W. 2d 627 (1959), the Fort Worth
Court of Civil Appeals again considered whether a person was a necessary
party or merely a nominal party to the suit considering the operation of
the Dead Man Statute. The court stated that the word party, as used in
the Dead Man Statute, means:
"A person who has a direct and substantial interest in
the issue to which the testimony relates and who is either
an actual party to the suit or will be bound by any judgment entered therein. Chandler v. Wellborn, Tex. Civ.
App., 294 S. W. 2d 801. The exclusionary object of
Art. 3716 is not directed against parties with no real
interest. Watson was a mere pro forma party. He was
not inhibited by the Dead Man Statute".
The Watson mentioned above was the husband of the plaintiff and the interest
sued for was the separate property of the plaintiff. The Roselle court
stated that the husband did not have the type of interest in the lawsuit to
come within the meaning and purpose of the Dead Man Statute's disqualification. In so ruling the court cited Lehman v. Krahl, supra.
As the only interest disqualification left in the Texas statutes, Art. 3716
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has been time and again circumvented or construed in such a way as
to prevent its application to the facts of a particular case.
The purpose of this disqualification statute is to guard against
the giving of false testimony. The limitations as noted on this disqualification statute did not appear to guard against the giving of false
testimony, but instead have come about as a result of the court's
reluctance to exclude whatever testimony is available in a case. There
is no assurance that the survivor of a transaction with a decedent who
does not come within the strict confines of the Dead Man Statute will
give a more truthful version of the transaction than a survivor who does
come within the confines of the statute. However, the limitations on the
application of the statute are frequently applied and there seems to be
no case law where any court is trying to exclude testimony where it might
come in under one of these limitations.
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