Owens v. Owens' Adm'r

• Citation: 14 W.Va. 88
• Parties: OWENS v. OWENS'S ADM'R.
• Decision Date: 09 November 1878
• Court: Supreme Court of West Virginia

14 W.Va. 88

OWENS v. OWENS'S ADM'R.

Supreme Court of West Virginia.

November 9, 1878

In an action of assmpsit brought by the plaintiff against the defendant as administrator of his decedent, to recover chiefly for work and labor done by the plaintiff for the defendant's decedent during his life. HELD:

1. That the circuit court erred in permitting the plaintiff to testify as a witness in her own behalf as to her work and labor and services rendered for the deceased, and what things she did in and about the work and labor, she claimed to have performed for the deceased in his lifetime, whilst she lived with him, and had taken charge of the household affairs of the deceased, and had sold produce, and bought provisions for the house with such produce, and had nursed deceased in his sickness.

2. That the plaintiff was incompetent to testify as a witness in her own behalf to said matters under the provisions of paragraph II. of the 23d section of chapter 130 of the Code of 1868 of this State, for reasons stated in the written opinion of the Court.

Supersedeas to a judgment of the circuit court of Wirt county rendered on the 5th day of June, 1877, in an action of assumpsit in said court then pending wherein Mary E. Owens was plaintiff, and J. A. Owens administrator, & c., was defendant, granted on the petition of said J. A. Owens.

Hon James Monroe Jackson, judge of fifth judicial circuit rendered the judgment complained of.

The facts of the case are fully stated in the opinion of the Court.

John A. Hutchinson, for plaintiff in error, cited the following authorities:

Code ch. 130, §23 ¶ II.; 27 Gratt. 783; 9 W.Va. 190; 3 L. & Eq. R. 590; 28 Gratt. 348; 62 N.Y. 80; 98 Mass. 468; 26 Wis. 691; 24 Gratt. 74; 25 Gratt. 361; 1 Whart. Ev. §466 and cases cited; 12 How. (U.S.) 246; 15 Gratt. 134, 141; 6 Wend. 267.

Walter S. Sands, for defendant in error, cited the following authorities:

15 Gratt. 122; 2 W.Va. 285; 5 W.Va. 18; 41 N.Y. 349; 26 N.Y. 264; 39 N.Y. 317; 36 N.Y. 327; 18 Abb. Pr. 186; 1 Denio 281; 18 N.Y. 448; 13 Pet. 302; 1 Pet 328; 3 How. (U.S.) 515.

OPINION

HAYMOND, JUDGE

This is an action of assumpsit, brought in the county of Wirt by the plaintiff against the defendant, as administrator of George W. Owens, deceased. The declaration in the case has several common counts, and among others the following: " And in $1,400.00 for services rendered by the plaintiff to the said George W. Owens in his lifetime, as housekeeper at the rate of $3.00 per week for three hundred and seventy weeks, under an agreement made by and between the plaintiff and the said George W. Owens, to be paid at and after the death of the said George W. Owens, and for which services which were rendered at the request of said George W. Owens, he the said Owens in his lifetime promised and agreed to pay to the plaintiff at the rate of $3.00 per week from the 3d day of April, 1868, until the 14th day of May, 1875; and the plaintiff avers, that the said George W. Owens died on the -- day of May, 1875, and she therefore avers that an action hath thereby accrued to her to demand the aforesaid sum of money, and to have and maintain this suit; and in $1,400.00 for services as a housekeeper, rendered by the plaintiff to the said George W. Owens in his lifetime at his request; and for other domestic service rendered by like request in superintending the household affairs of the said George W. Owens, in spinning, weaving, milking, churning, marketing, washing and ironing, and doing the labor of a tailoress and seamstress for the said George W. Owens and his father at his request; and in superintending a boarding house for the said George W. Owens at his request, attending to and discharging all the duties incident to the same, and for services rendered as a nurse to the said George W. Owens and to his late father at the request of the said George W. Owens, for the period of three hundred and seventy weeks from the 3d day of April, 1868, to the 14th day of May, 1875, for the sum of $3.00 per week, which the said George W. Owens in his lifetime promised and agreed to pay to the plaintiff. And the said George W. Owens afterwards, to-wit: on the 14th day of May, 1875, in his lifetime promised to pay the plaintiff, in consideration of the premises, the aforesaid several sums respectively to the plaintiff on request and in consideration of the premises, & c.

The plaintiff filed with her declaration the following account or bill of particulars, viz:

" John A. Owens, as administrator of the estate of Geo. W. Owens, deceased, in account with Mary E. Owens:

DR.

For services as a house-keeper for the said George W. Owens, deceased, from the 3d day of April, 1868, to the 14th day of May, 1875, being three hundred and seventy weeks, at $3.00 per week by agreement with George W. Owens $1,110 00

For services in nursing and waiting on Willis Owens, deceased, the father of Geo. W. Owens, three hundred and seventy weeks at $3.00 per week 1,110 00

For weaving, spinning, marketing and out door labor performed, besides services as housekeeper 1,110 00

For 12 bushels wheat at $1.50 per bushel 18 00

MARY E. OWENS )

vs. ) In assumpsit.

JOHN A. OWENS, Administrator of Geo. W. Owens deceased. )

In the Circuit Court of Wirt county;

The defendant will take notice that the plaintiff will rely on proof of the above account on the trial of said cause.

MARY E. OWENS, plaintiff,

By, & c."

It would seem, that issue was joined in the cause upon the general issue of non assumpsit. On the 14th day of October the jury empanelled in the cause in said circuit court returned to the court their verdict, in and by which they found for the plaintiff, and assessed her damages at $518.00. Whereupon the defendant by his attorney, moved the court to set aside the said verdict and award him a new trial, on the ground that the same is contrary to the law and the evidence, which motion was continued until the next term.

Afterwards on the 5th day of June, 1877, the said circuit court, considering that the said verdict was " excessive and not fully sustained by the evidence in the cause, was of opinion to set aside the verdict aforesaid on the usual terms, unless the plaintiff elected to release all of said verdict except as to the sum of $200.00. Whereupon the plaintiff, by her attorney," in open court released all of said verdict except the sum of $200.00. And thereupon the court rendered judgment in favor of the plaintiff against the defendant, administrator of G. W. Owens, deceased, for the sum of $200.00 with interest thereon from the 14th day of October, 1876, till paid, and the costs of suit to be satisfied of the goods and chattels of the said G. W. Owens, deceased, in the hands of the said J. A. Owens, unadministered.

It appears by a memorandum entered of record at the foot of said judgment, that " on the trial of this cause the defendant excepted to an opinion of the court, and tendered his bill of enceptions, which was signed, sealed and saved to him and made part of the record in this cause." The bill of exceptions appears to have been signed by the judge, and is as follows, viz:

" Be it remembered, That on the trial of this cause the plaintiff, to maintain the issue upon her part, was introduced as a witness in her own behalf to testify in relation to the matters constituting her claim against the estate aforesaid, to which defendant objected, on the ground that she was not a competent witness as to any transaction or communication had with the deceased personally involved in this cause; but the court ruled, that while the plaintiff could not under the statute testify as to any transaction or communication had with the deceased, she was competent to testify as to her work and labor and services rendered for the deceased, and what things she did in and about the work and labor, she is alleged to have performed for the deceased in his lifetime, whilst she lived with him, and that she was his sister, and had taken charge of the household affairs of the deceased, and had sold produce, and bought provisions for the house with such produce, and had nursed deceased in his sickness; and so the said plaintiff did testify in effect as hereinbefore stated; and the evidence was before and heard by the jury, and they considered the same. To which ruling of the court the defendant excepted, and this his bill of exceptions tenders, and prays that the same may be signed, sealed and saved to him, and made a part of the record in this cause.

JAMES M. JACKSON, (Seal.)"

To said judgment of said circuit court, rendered on the 5th day of June, 1877, for said $200.00, & c., the defendant obtained a supersedeas; and thus the case is before us for review and determination.

The first error assigned by the defendant in his petition for a supersedeas is, that " the plaintiff was incompetent as a witness in regard to the matter, upon which she testified, within the meaning and intent of the 2d paragraph of the 23d section chapter 130 of the Code. Second the court, as the record shows, found the verdict " not fully sustained by the evidence." It ought to have been set aside in toto.

The 22d section of chapter 130 of the Code of this State of 1868 provides, that " no person offered as a witness in any civil action, suit or proceeding shall be excluded by reason of his interest in the event thereof." The 23d section of the same chapter, and first and second paragraph thereof enacts, that " a party to a civil action, suit or proceeding may be examined as a witness in his own behalf, or in the behalf of any other party, in the same manner and subject to the same rules of examination as any other witness,...