Wiggins Turpentine Co. v. Calamity Land Co.

Cook, J., delivered the opinion of the court. We can find no error in this record, and but one assignment of error deemed of sufficient importance to write about. This is a suit by the Calamity Land Company, a corporation, against the Wiggins Turpentine Company, a corporation, to recover actual and exemplary damages for damaging the property of the complainant company. To show that the trespass was wantpn, the president of the complainant company was permitted to testify, over defendant’s objections, that the president of the defendant company applied to him for the privilege of working the timber in question, and. that he refused the permission and forbade the working of the timber. It appears that the president of the defendant company died before the beginning of this suit, and it is the position of appellant, defendant below, that the president of the complainant company was thus permitted to establish his claim against the estate of a deceased person, in violation of section 1917, Code 1906. There seems to be some doubt from the record whether the claims “originated during the lifetime” of the deceased president of the defendant company, but for the purposes of this decision we will consider the point as if the transactions testified about originated before the death of the president. It is said that Mr. Currie, the deceased president, was the owner of fifty per cent, of the capital stock of the defendant corporation, and that Mr. Farnsworth owned all of the stock of the complainant company. From these facts it is argued that the suit was really based on the claim of Mr. Farnsworth, and was Ms claim in the [634] statutory sense, and a claim against the estate of the deceased president of the defendant company. "W!as this a suit against the estate of a deceased person, and was it a claim of Mr. Farnsworth? The answer to these questions will test the soundness of appellant’s contention. As a matter of fact the suit is against a living corporation, a legal entity; hut it is argued that, the purpose and spirit of the statute being to seal the lips -of the living because death has sealed the lips of the dead, and the witness being indirectly interested in the claim, the statute excludes his testimony. There is no statute rendering incompetent the testimony of a living witness touching the acts and words of a dead person, whose words and acts are evidential in the issues involved in a law suit. The living witness is competent to testify concerning conversations with the deceased, unless it appears that the purpose and effect of his testimony is to establish the witness’ claim against the estate of the deceased. The witness here was the owner' of the entire capital stock of the suing corporation, and in a sense he is the corporation, or rather the corporation is the witness himself doing business under a corporate name. This is stating the case stronger than it is stated in the briefs of appellant, to test the principles involved. How would the case stand if the record disclosed the facts to be that the suing corporation is capitalized at one million dollars and the witness owns one hundred dollars of the stock? Again, it is said that the dead president owned fifty per centum of the capital stock of the defendant company, and that a judgment against the company would necessarily entail a loss to his estate. "Wiould the case be different if he owned all of the capital stock, or owned only one per cent, thereof? Neither the amount and value of the capital stock owned by Mr. Farnsworth nor the amount and value of Mr. Currie’s stock in the defendant company is determinative of the question un [635] der consideration. This seems to he obvious, because a contrary holding would present problems which could not be solved, except by the adoption of some arbitrary rule, varying according to the views of individual judges. We think the statute cannot be applied here. This suit is not based on the claim of Mr. Farnsworth, and it is not against the estate of Mr. Currie. True, Mr. Currie’s estate may be remotely affected by this judgment; but in these days, when the great bulk of the business of the country is done by corporations, and some part of the capital stock of a large proportion of the corporations is owned by the executive officers thereof, who carry on the business of the corporation by agreement and understandings with each other, a statute designed for the protection of natural persons cannot be safely enlarged to cover transactions of artificial persons, especially when it is manifest that the evidence offered is not condemned by the terms of the statute. In support of our views we cite McCutchen v. Rice, 56 Miss. 455; Faler v. Jordan, 44 Miss. 283; Bexar Bldg. & Loan Association v. Newman (Tex. Civ. App.), 25 S. W. 461. Affirmed. Stevens, J., took no part.