Mumm v. Owens

DILLON, Circuit Judge. This action was brought by Johnson in his life time, for personal injuries to himself, caused by the alleged negligence of the defendant, and pending the action he died, and his administrator was substituted as the party plaintiff, and he seeks to recover for the same injuries for which the action was commenced by Johnson. Under the statute of the state, the action survives, as will be seen by the case of Shafer v. Grimes, 23 Iowa, 550. It is to be noticed that this is not an action by the administrator, under the statute of the state, to recover damages for the death of Johnson; but it is the original action, brought by Johnson, which did not abate by his death, but, under the statute, survived tó his administrator. Johnson, before his death, was examined as a witness in his own behalf, and his examination was reduced to writing, in the form of a deposition, and this deposition has been read in evidence by the plaintiff. Now, is the defendant, under these circumstances, precluded from testifying to the matters covered by Johnson’s evidence, as contained in the deposition read to the jury? Under the act of congress of July 2, 1864 (13 Stat. 351, § 3), and of March 3, 1865 (13 Stat. 533, § 1), it is my opinion that the defendant should be allowed to testify, if the plaintiff insists upon keeping the testimony of his intestate bofore the jury. The first act above cited makes parties competent witnesses in all civil cases; and the second act does not pronounce an absolute disqualification against the living party when the adverse party is an administrator, but enacts that he “shall not be allowed to testify against the other as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” In this case, the intestate has testified, and his testimony is before the jury; to exclude the defendant from giving his version of the same transaction would be manifestly unfair, and in contravention of the purpose and spirit of the legislation of congress. Evidence admitted.