Copp v. Hardy

• Decision Date: 10 December 1888
• Citation: 32 Mo.App. 588
• Parties: MICHAEL COPP, Defendant in Error, v. J. M. HARDY, Administrator of KEZIAH REIMEL, Deceased, Plaintiff in Error.
• Court: Kansas Court of Appeals

32 Mo.App. 588

MICHAEL COPP, Defendant in Error, v. J. M. HARDY, Administrator of KEZIAH REIMEL, Deceased, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Error to Cooper Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Hazell & Pash and Cosgrove &amp Johnston, for plaintiff in error.

(1) The court erred in giving instruction numbered two, asked by plaintiff. (a ) It singles out evidence from the mass of testimony and instructs the jury as to what conclusions follow, which is error. Pourcelly v Lewis, 8 Mo.App. 593; Kendig v. Railroad, 79 Mo. 207. (b ) It singles out particular facts elements of proof bearing on the question of plaintiff's right to recover, and told the jury that neither of those facts would prevent a recovery in this case. It was for the jury to respond to the probative force of these facts, and the defendant was entitled to have them considered by the jury in connection with all the facts and circumstances in proof. Weil v. Schwartz, 21 Mo.App. 372; Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267. (2) The court erred in refusing to permit defendant's administrator to testify to the value of Mrs. Reimel's estate. Darby v. Knapp, 2 Mo.App. 486; Smith v. Vincent, 15 Conn. 1; Olmstead v. Hoyt, 11 Conn. 376; 38 Am. Dec. 52. The only contract between Mrs. Reimel and the plaintiff for the payment for her board and maintenance was an implied one. There is no proof of an express contract between them. It was therefore competent to prove the pecuniary circumstances of Mrs. Reimel, and her ability to pay in order to fairly determine what, if anything, she should pay to plaintiff for her support and care. McGono v. Irsin, 44 Am. Dec. 409. (3) The court erred in permitting the wife of plaintiff to testify to acts done by her as agent of her husband without first having proof of such agency from some other source than the wife herself. She was not a competent witness to prove her own agency. Williams v. Williams, 67 Mo. 661; Mfg. Co. v. Tinsley, 75 Mo. 458.

Walker & Johnson and Draffen & Williams, for defendants in error.

(1) When matters have been introduced before a jury which are wholly immaterial, the court may guard them against being misled thereby. The instruction complained of did not single out certain facts having a tendency to defeat plaintiff's case, and declare the weight to be given them, but told the jury that certain matters were wholly immaterial. The defendant was not injured by this instruction. (2) There was no error in excluding evidence as to the value of Mrs. Keziah Rimel's estate. Plaintiff was entitled to recover the reasonable value of his services in caring for her. The amount of her property could not have reduced plaintiff's recovery below the reasonable value thereof. By showing that plaintiff was a woman of large means, and required many extra attentions, plaintiff might have enlarged his verdict, but it is difficult to see how the value of her board and the care and attention rendered her could be reduced by showing the amount of her property. If the services are the same, the reasonable value thereof must be the same in the eye of the law, whether the recipient is rich or poor. Defendant sustained no injury by this ruling of the court. He did not state what he expected to prove the estate was worth. So far as the record shows, the witness may have stated that the estate was very valuable. The defendant must show that he was injured by the ruling of the court. Merely asking a question, without stating the answer expected to be elicited, is insufficient to show that there was material error in excluding the question. Schlicker v. Gordon, 19 Mo.App. 479; State ex rel. v. Leland, 82 Mo. 260. (3) There was no error in permitting Mrs. Copp, the wife of plaintiff, to testify. Keziah Rimel, in her lifetime, had stated to the witness Wm. McClanahan that her daughter Mrs. Copp had bought all of her clothing. L. L. Chilton also testified that Mrs. Copp purchased the goods to which she testified. This evidence was sufficient to establish her agency. Her evidence was only corroborative of other evidence. She only testified to buying $25.25 worth of goods during the time deceased resided with plaintiff. The defendant was not injured by this testimony, as all the evidence showed that the clothing of the deceased during that time was furnished by plaintiff, and certainly twenty-five dollars was a reasonable price for it. A case can only be reversed for material error against appellant. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. McGruder, 51 Mo. 55; Hicks v. Railroad, 68 Mo. 329. The evidence of Mrs. Copp had no appreciable effect on the result. Hence, if the action of the court was erroneous, it is not reversible error. Street v. Goss, 62 Mo. 226; Wilkerson v. Allen, 67 Mo. 502.

ELLISON P. J.

This was a proceeding commenced by the plaintiff in the probate court of Moniteau county, Missouri, against the estate of Keziah Reimel, deceased, on the following account filed for probate: " Boonville, Mo., January 20, 1887. James Hardy, administrator of the estate of Kizzy Reimel, deceased, Dr. To Michael Copp,--To support, maintenance, care, nursing and board of Kizzy Reimel, deceased, from Nov. 29, 1882, up to the time of her death, which was Feb. 2, 1884, being 430 days, at $2.50, $1,075.00; to cash paid out for her, $52.00; by cash received of T. H. Winterbower, $20.00; to balance $1,107.00; to 3 years interest on same at 6 per cent., $199.26, $1306.26." A trial was had before a jury in the probate court which resulted in a verdict for plaintiff for $228.80, from which plaintiff appealed to the circuit court of Moniteau county, from whence said cause was removed, on application of plaintiff, to the circuit court of Cooper county, Missouri. At the February term, 1888, of the latter court, the cause was tried before a jury resulting in a verdict for the plaintiff for five hundred dollars, from which the administrator has brought the cause to this court by writ of error.

I. The deceased, in her lifetime, conveyed all of her real estate to her son, Abram Reimel, in consideration that he would furnish her a home and support and maintain her during her life. Her son gave to her an instrument in writing reciting that this was the consideration for the land. Soon thereafter the son died, and on November 29, 1882, she removed to plaintiff's, who is her son-in-law, and, as is alleged became liable to him by reason of an implied contract for furnishing her a home, and supporting and maintaining her. This contract is asserted by the plaintiff and disputed by defendant. A witness for plaintiff testified that he " heard her [deceased] say on one occasion that she gave her son Abram a piece of writing or deed by which he, Abram, was to get his pay for keeping her, out of her...