491.010. Witness's interest does not disqualify — exception — statements of deceased persons and incompetents and other parties to the transaction — abrogation of deadman statute. — 1. No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility.
2. In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, provided that in trials before a jury, the trial judge shall first determine by voir dire examination out of the hearing of the jury that the declarant would have been a competent witness and that his alleged statement or statements would have been admissible in evidence if he were available to testify.
3. The provisions of this section shall apply to all trials commenced after September 28, 1985.
Notes of Decisions
Cited in
164
cases (
1 in the last 5 years), 1952–2024 · leading case:
Est. of Brown v. Fulp, 718 S.W.2d 588 (Mo. Ct. App. 1986).
Est. of Brown v. Fulp, 718 S.W.2d 588 (Mo. Ct. App. 1986).
· cites it 20× “Both parties suggest that former § 491.010, RSMo Supp.1984 (now repealed), was applicable to this case, but the point is not developed.”
Flanagan v. DeLapp, 533 S.W.2d 592 (Mo. 1976).
· cites it 15× “[2] The issues presented on this appeal concern (1) the sufficiency of the evidence to show undue influence by DeLapp in the execution of the deed by Joseph, and (2) whether the court erroneously excluded proffered testimony of DeLapp on the basis of § 491.010, [3] the dead…”
Buchweiser v. Est. of Laberer, 695 S.W.2d 125 (Mo. 1985).
· cites it 10× “, and the adverse party ... testifies with respect thereto, then any relevant statement .”
Brewer v. Blanton, 555 S.W.2d 381 (Mo. Ct. App. 1977).
· cites it 9× “Stallc-up’s executor based on § 491.010, to an offer of proof made by plaintiffs dealing with an alleged conversation between Berry and plaintiff Hayward Brewer.”
Prentzler Ex Rel. Frazee v. Schneider, 411 S.W.2d 135 (Mo. 1966).
· cites it 12× “That court reversed and remanded for error in permitting plaintiff to testify to facts of the collision, because she was incompetent as a witness by reason of § 491.010, RSMo 1959, V.A.M.S. (commonly referred to as the Dead Man's Statute), the other party to the action being…”
In Re Est. of King, 572 S.W.2d 200 (Mo. Ct. App. 1978).
· cites it 8× “Rea was violative of Section 491.010, the "dead man's statute"; and (4) the "best evidence rule" should have excluded the admission of certain defendant's exhibits.”
Kennedy v. Dixon, 439 S.W.2d 173 (Mo. 1969).
· cites it 6× “The evidence on this issue was limited by the court by reason of § 491.010, RSMo 1959, V.A.M.S., Missouri's so-called Dead Man's Statute.”
Swon v. Huddleston, 282 S.W.2d 18 (Mo. 1955).
· cites it 6× “Each of the defendants testified *23 (over objections that he was a party to the suit and incompetent to testify to the transaction, — which was considered by the court as an objection under the “Dead Man’s Statute” — Section 491.010 RSMo 1949, V.A. M.S.), that he did not hear…”
Vosburg v. Smith, 272 S.W.2d 297 (Mo. Ct. App. 1954).
· cites it 7× “Defendant also asserts that plaintiff’s husband was disqualified under “the dead man’s statute” (Section 491.010, RSMo 1949, V.A.M.S.), and that the court erred in overruling objections to his testimony.”
Fix v. Fix, 847 S.W.2d 762 (Mo. 1993).
· cites it 3× “This Court granted transfer of the case to examine the issue of admissibility of certain evidence in view of the 1985 amendment to § 491.010, RSMo 1986, which abolished the disqualification of interested witnesses in civil actions where one party is dead or incompetent and the…”
Coon Ex Rel. Coon v. Am. Compressed Steel, Inc., 207 S.W.3d 629 (Mo. Ct. App. 2006).
· cites it 4× “Appellants fail to offer any explanation or authority as to how the subject out-of-court statements violate the current version of the “Dead Man Statute,” Section 491.010. 5 Although the statute originally prohibited interested witnesses from testifying about transactions with…”
— Mo. Rev. Stat. § 491.010(2) — 1 case
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