The subject case, Fincham v. Mueller (166 Neb. 376, 89 N.W.2d 137 ), involves an action for personal injuries resulting from a two-car collision at a country road intersection in which Mueller, driver of one of the cars, was killed. The driver of the other car, Fincham Sr., brought the action against the decedent’s estate as father and next friend of his eight-year-old son, Fincham Jr., who was riding with him as his guest. There were no eyewitnesses to the accident. At the trial, Fincham Sr. was allowed to testify as to his own vehicle and his operation thereof but not as to the action of the decedent and his vehicle, the trial judge sustaining objections to such testimony under the so-called Dead Man Statute. HELD: Judgment for defendant. The trial court granted defendant’s motion to dismiss on the grounds that there was no showing of negligence on decedent’s part, which ruling was affirmed on appeal.
Under section 25-308 of the Nebraska Revised Statutes, Fincham Sr., as next friend for his son, was liable for the costs of the action. This liability has been deemed sufficient to constitute a direct legal interest so as to bar the witness from testifying under the Nebraska Dead Man Statute. Thus, the question of whether or not an automobile accident is a transaction within the meaning of section 25-1202 of the Nebraska Revised Statutes was properly before the Nebraska Supreme Court. It is interesting to note that had Fincham Jr.’s mother or a third-party guardian brought the action for him, the above question would not have arisen, since whether the accident was a transaction or not, Fincham Sr. would no doubt have been a competent witness as he would not have had a direct legal interest in the result of the action.
John F. Haessler,
Torts—Automobile Accident as a Transaction within the Meaning of the Dead Man Statute,
38 Neb. L. Rev. 565
Available at: http://digitalcommons.unl.edu/nlr/vol38/iss2/11