Averitt v. Warren, 1878.

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Averitt v. Warren, 125 S.W.2d 691 (Tex. App. 1939)
• Decision Date: 03 February 1939
• Docket Number: No. 1878.,1878.
• Parties: AVERITT et al. v. WARREN et al.

125 S.W.2d 691

AVERITT et al. v. WARREN et al.

No. 1878.

Court of Civil Appeals of Texas. Eastland.

February 3, 1939.

Rehearing Denied March 3, 1939.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Proceeding by Mrs. Josie Richie Averitt and husband against Booth Warren, receiver, and others to establish an amount claimed by the named plaintiff for caring for her father and to have the amount fixed as a charge against his estate. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded.

Cox & Hayden, of Abilene, for appellants.

Smith & Eplen, of Abilene, for appellees.

LESLIE, Chief Justice.

Mrs. Josie Richie Averitt, joined pro forma by her husband, instituted this suit against Booth Warren, Receiver, and her brothers and sisters as the other heirs of her father G. D. Richie, Sr., deceased.

For cause of action she alleged that for about the last six years of her father's life he was old, decrepit and infirm in mind and body; that he owned certain property in Taylor County, including his home and two tracts of farm land. That he was unable to take care of himself, but required the services of someone to look after him, keep house for him, to do his cooking, laundry, mending of clothes, etc.; that he employed the plaintiff for such purpose; that she, in effect, left her own home and moved into the house with her father and looked after him, performing the services agreed upon; that he agreed to pay her a reasonable amount for her services, but that such amount was never agreed upon; that her services were reasonably worth $3 per day. She seeks to establish the amount owed her and have it fixed as a charge against the estate, alleging in that connection that no administration of the same was pending and no necessity for any.

Defendants entered a general denial. The trial was before the court and jury. The case was submitted upon special issues and upon the answers to the same judgment was rendered that she take nothing by the suit. She appeals, assigning errors to the admission of testimony. The verdict of the jury found (1) that said G. D. Richie, Sr., never employed the plaintiff to do the work alleged; (2) that she performed services for him; (3) that the services were valuable, and (4) of a reasonable value of $300.

Assignments of error 2 to 5, inclusive, are in substance and legal effect the same, pertaining to testimony of the same import given by different witnesses. By these assignments it is contended that the evidence complained of in each instance was hearsay, being statements made by the deceased to outside parties out of the presence of the plaintiff on the very question involved in the lawsuit, that is, whether or not the deceased ever employed the plaintiff to perform the services alleged. It is asserted that the statements testified about were self serving, prejudicial and inadmissible.

On the trial of the case, while defendants' witness, E. G. Sandusky, was testifying, said witness was permitted in response to questions by defendants to testify over the objection of plaintiff that the deceased G. D. Richie, Sr., told him (witness) in the absence of the plaintiff that he (deceased) occupied one side of his residence and the plaintiff occupied the other, and that he (deceased) let the plaintiff do her cooking separately and that he did his, and that he had rather do that in order to avoid any hard feelings with the plaintiff. Plaintiff objected to the introduction of this testimony on the grounds above stated.

While Mrs. G. W. Richie, a defendant and witness for the defense, was on the stand she was likewise permitted to testify over objections to statements made by G. D. Richie, Sr., in the absence of the plaintiff. She testified that said Richie, Sr., told her that the arrangements that he had with the plaintiff were to the effect that he was to have his own rooms in the home and do his own housekeeping and cooking and that she (plaintiff) was to have her side of the house and do her own housekeeping and cooking and that he had no other arrangement with plaintiff except that he was to deposit certain money to her credit in the bank from time to time.

Under like objections and rulings other witnesses for the defendants, namely, F. B. Riney (defendant) and B. B. Reynolds, were permitted to give testimony of like import.

The plaintiff's daughter, and one Mrs. E. E. Aiken, witnesses in behalf of plaintiff, testified to an alleged contract of employment which the deceased in his lifetime stated he had made with the plaintiff. Such statements were in harmony, of course, with the allegations of the petition. Being statements against interest they were admissible in behalf of the plaintiff (17 Tex.Jur. p. 543, sec. 224 and authorities there cited), but the evidence complained of under said assignments of error is hearsay. They were self-serving and inadmissible against the plaintiff. The jury found that no such contract was made. Evidently this inadmissible testimony was prejudicial to the appellant's case.

The defendants seem to have offered the testimony upon the same theory that such testimony was tendered in Solomon v. Huey, 1 Posey, Unrep.Cas. 265. That was a suit instituted by appellants (Solomon and others) against appellee as administrator of J. M. Lindley upon a promissory note for $1,000 in favor of appellant Solomon. The point pertinent in the present inquiry was disposed of by the opinion in this language: "The third assignment of error, to the admission of Lindley's declarations of his non-indebtedness in evidence, is, in our opinion, well taken. In the bill of exceptions taken on this account, the judge explains: `The plaintiffs having been permitted to prove declarations of the intestate made to other persons, and not in the presence of the plaintiffs, the declarations of the intestate made to others, and at other times and places, were admitted by the court by way of rebuttal, being introduced by the defendants.' Manifestly this was error. While the admissions of a party against his interest, made verbally, though always to be received with great caution, are competent testimony, and often of the most satisfactory nature, it does not follow that his declarations in his own interest, made at other times and places, and not in the presence of his adversary, are competent testimony, for that would be to permit a man to manufacture evidence in his own favor." Citing Wharton Evidence 1077. (Italics ours.)

In Sparks v. Johnson, Tex.Civ.App., 235 S.W. 975, 977, Tobe Sparks sued Matthew Johnson for damages for an alleged breach of an oral contract to rent a farm to plaintiff. Before the trial Johnson died, but on the trial a witness, Coon, was permitted to testify that Johnson, in the absence of Sparks, told him, among other things, "that he [Johnson] had not rented the place to Tobe Sparks" etc. Exceptions were taken to the admission of this testimony and the court held as follows:

"This...