Continental Assur. Co. v. Friedman , 289 Mich. 531 ( 1939 )

I am constrained to concur with Mr. Justice WIEST in overruling our recent decision in Re Einfeldt's Estate,286 Mich. 537, but not without brief comment. In general terms it may be said the statute (3 Comp. Laws 1929, § 14219 [Stat. Ann. § 27.914]) was designed to bar the opposite party in a suit prosecuted or defended by the heirs, et cetera, of a deceased person from testifying "at all to matters which, if true must have been equally within the knowledge of such deceased person." As my Brother has stated in the instant case:

"The testimony of the medical examiner (plaintiff's agent) as to what the insured said or failed to say was incompetent because equally within the knowledge of the deceased."

There appears to be no reason for questioning this holding; but by the same token why should this agent of plaintiff be permitted to testify that the insured's husband was or was not present at the time and place the witness examined the insured, which was in the dining room of her own home? Surely this fact or circumstance, "if true must have been equally within the knowledge of such deceased (insured) person." In such event the statute clearly would seem to bar the testimony of plaintiff's agent.

Were the question new in this jurisdiction, I would feel bound to adhere to our ruling in the Einfeldt Estate decision,supra; but present review discloses numerous earlier decisions of this court which are in accord with my Brother's holding in the instant case. See Webster v. Sibley, 72 Mich. 630; Pillard v. Dunn, 108 Mich. 301; Schmitz v.Beals, 115 Mich. 112; Moore v. Machen, 124 Mich. 216; and Rock v. Gannon Grocery Co., 246 Mich. 545.

Since the issue is, after all, the construction of a statute which fixes a rule of evidence, it may be the better part of judgment to adhere to the rather permanently determined construction of the statute as announced in our earlier decisions over a period of more than 40 years. For that reason, but somewhat reluctantly, I concur.

BUTZEL, C.J., and BUSHNELL, J., concurred with NORTH, J.