Buckalew v. Haskew

346 So. 2d 451, 1977 Ala. Civ. App. LEXIS 666
CourtCourt of Civil Appeals of Alabama
DecidedMay 25, 1977
DocketCiv. 1071
StatusPublished

This text of 346 So. 2d 451 (Buckalew v. Haskew) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckalew v. Haskew, 346 So. 2d 451, 1977 Ala. Civ. App. LEXIS 666 (Ala. Ct. App. 1977).

Opinion

BRADLEY, Judge.

This appeal was initiated when Frank Haskew filed suit in the Circuit Court of Clarke County against Annie L. Monk Buckalew, formerly Annie L. Monk Duna-gan, individually and as administratrix of the estate of Winford Clarence Monk, and the heirs of the deceased Winford Clarence Monk. Haskew asked that he be declared the legal owner of eight Town of Grove Hill First Mortgage Industrial Development Revenue Bonds in the amount of $500 each, and that the estate and heirs of Winford Clarence Monk be divested of any interest they might have in the bonds. The defendants denied Haskew’s claim to the bonds and counterclaimed to be declared the legal owners of the bonds. After a trial without a jury, the circuit court rendered a judgment in favor of Haskew. The administra-trix, Mrs. Buckalew, appeals.

Appellant Buckalew maintains the trial court committed reversible error in two respects: first, the court allowed into evidence testimony which violated the Dead Man’s Statute and second, there was. insufficient legal evidence to support the trial court’s decree.

The portion of Title 7, Section 433, Code of Alabama 1940 (Recomp.1958), otherwise known as the “Dead Man’s Statute,” involved here is as follows:

“In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, . ..”

The question to be answered is whether the testimony of Haskew and Mrs. Buckalew, allowed over objection, dealt with any transaction with or statement by the deceased. Hartford Accident & Indemnity Co. v. Kykendall, 287 Ala. 36, 247 So.2d 356 (1971); Gilbreath v. Levi, 268 Ala. 148, 105 So.2d 96 (1958); Gamble v. Whitehead, 94 Ala. 335, 11 So. 293 (1891). If the questioned testimony related to a collateral matter, it is not objectionable and was properly admitted. Solinger v. Solinger, 57 Ala.App. 225, 327 So.2d 721 (1975). However, if the testimony concerned or related to a direct [453]*453transaction with the deceased, it is objectionable and should have been rejected.

The first objected to question and answer occurred when the witness Mrs. Buckalew was on the stand:

“Q Tell the Court how you first learned of the existence of any bonds?
“A Well, Frank came to me and said that he had the bonds that he had bought.
“MR. KEAHEY: I object and move to exclude any testimony in regard to anything Mr. Haskew had with the deceased in which he had an interest which is adverse to the estate of the deceased.
“It is a violation of the dead man’s statute.
“JUDGE YOUNGER: It is between him and the witness. I overrule.
“MR. KEAHEY: Except.”

This colloquy strikes us as being very similar to that in Gamble v. Whitehead, supra. There the plaintiff-witness, who had brought an action against the administrator of the estate of a deceased person to recover the proceeds of a note which had been intrusted to the deceased for collection, was asked whether she had ever received anything for the note. Over objection, she was permitted to answer no. On appeal the supreme court said: “ . Neither the question nor the answer relates directly to, or sheds any direct light upon any transaction with, or statement by defendant’s intestate. . . . ” 94 Ala. at 336, 11 So. at 294. Likewise in the case at bar, we do not believe that either the question to which Mrs. Buckalew objects or the answer given related to or shed any light upon any transaction with or statement by the deceased Mr. Monk. The objection to this question was properly overruled.

The next objected to question was directed to Haskew while he was on the stand:

“Q Now, the first bond was number 109-D, the first bond called. Do you know who received the proceeds from that bond?
“A I got it.
“MR. KEAHEY: We object and ask it be excluded. It was a transaction he had with the deceased.
“JUDGE YOUNGER: Overrule.
“MR. KEAHEY: Except.”

Again we do not believe that the trial court committed error in allowing Haskew to testify that he received the proceeds from the call of one of the bonds in question, and we rely on the Kuykendall case, supra. There the witness had signed as surety with the deceased two promissory notes which were made payable to two banks in Tuscaloosa. The witness was permitted to testify over objection that he did not receive any of the proceeds from the two notes. The supreme court held that this question did not violate Title 7, Section 433, supra.

The third objected to question was asked of Haskew:

“Q Frank, these bonds that are in this lawsuit, who paid for them?
“A I did.
“MR. KEAHEY: I object and ask that it be excluded as to who paid for the bonds. It is certainly a transaction with the deceased. This man had an interest adverse to the estate of the deceased.
“JUDGE YOUNGER: I’m not sure it is, but if you want to I will hear you on it.
MR. KEAHEY: It is undisputed these bonds were purchased in the name of Winfred Clarence Monk, who is now deceased, and Mrs. Buckalew is his widow and has been appointed administratrix of his estate. We had a lot of testimony about a conversation Mrs. Buckalew had with Mr. Haskew in an effort to let him get around it, and testimony to the transaction he had in the name of the deceased these bonds are in the name of.
“JUDGE YOUNGER: Isn’t there some presumption by virtue of possession?
“MR. KEAHEY: He has got the bonds and won’t give them to us.
[454]*454“JUDGE YOUNGER: Let me hear from you, Mr. Williams.
“MR. WILLIAMS: First of all, my question to him, the response to that question wouldn’t be any transaction by the deceased.
“JUDGE YOUNGER: I overrule the objection.”

Again, we do not think this colloquy violated section 433 and rely on Gilbreath v. Levi, supra. In that case the plaintiff, who had been in the used car business with the deceased, was permitted to testify that an amount of $1,928.75, which was the amount of a loan evidenced by a check made by plaintiff to deceased, was still due and unpaid. The supreme court held that the question and answer did not violate section 433, supra, for the testimony elicited from the witness did not relate to any transaction with or statement by the deceased. We consider the testimony challenged here to be controlled by the holding in the Levi case and find that the trial court committed no error in overruling the objection and allowing the witness to testify that he paid for the bonds in question.

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Related

Solinger v. Solinger
327 So. 2d 721 (Court of Civil Appeals of Alabama, 1975)
Hartford Accident & Indemnity Co. v. Kuykendall
247 So. 2d 356 (Supreme Court of Alabama, 1971)
Gamble v. Whitehead
94 Ala. 335 (Supreme Court of Alabama, 1891)
Gilbreath v. Levi
105 So. 2d 96 (Supreme Court of Alabama, 1958)

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346 So. 2d 451, 1977 Ala. Civ. App. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckalew-v-haskew-alacivapp-1977.