Bensinger v. West

• Decision Date: 13 February 1953
• Citation: 35 A.L.R.2d 1296,255 S.W.2d 29
• Parties: BENSINGER v. WEST.
• Court: United States State Supreme Court — District of Kentucky

Page 29

255 S.W.2d 29

35 A.L.R.2d 1296

BENSINGER v. WEST.

Court of Appeals of Kentucky.

Feb. 13, 1953.

Edward W. Bensinger, Louisville, for appellant.

Robert Hubbard and Stanley Briel, Louisville, for appellee.

DUNCAN, Justice.

The action involved on this appeal is based upon one of the contracts involved in the appeal of Bensinger's Coexecutors v. West, Ky., 255 S.W.2d 27. Although some of the facts involved on the other appeal are stated in that opinion, we will, in the interest of convenience, repeat them here so far as they are pertinent to the present appeal.

On January 10, 1947, Jerry West, then sixteen years of age, entered into a written contract with one Jake Glenn by the terms of which he became employed by Glenn for a period of five years as stable boy and jockey. As payment for the services to be rendered under the employment, Glenn agreed to provide the infant with board, lodging, traveling and medical expenses, and pay a salary of $50 per month during the first year, $75 the second, $100 the third, $125 the fourth, and $150 per month during the fifth year. On November 20, 1948, Glenn leased the services of the infant to Harry Bensinger and Coralie R. Bensinger, his wife. Subsequently, on March 31, 1949, the Bensingers purchased the contract, assuming all obligations as to support and wages, and Glenn made a complete assignment of all of his rights thereunder. From November 20, 1948, to January 10, 1950, West worked for the Bensingers under the terms of his agreement with Glenn. On the latter date, West purchased from Harry Bensinger his release from the Glenn contract, and his subsequent renunciation of that purchase is involved in the other appeal which we have mentioned.

After the death of Harry Bensinger, West, through his statutory guardian, instituted this action against Bensinger's executors to recover the sum of $1,456, alleged to be the amount of traveling, medical, and other personal expenses incurred in the service of the Bensingers from November 20, 1948, to January 10, 1950. Amended petitions were subsequently filed, increasing the amount sued for to $1,764, and Coralie Bensinger was joined as a defendant individually and as a surviving partner of Harry Bensinger. The case was referred to the Master Commissioner for proof, and upon the testimony heard, the Commissioner reported that West was entitled to recover $1,618. Exceptions to the report were overruled.

Conceiving that the testimony supporting the claim was not competent against the estate of Harry Bensinger because of the provisions of Civil Code of Practice, Section 606(2), a judgment was awarded individually against Coralie Bensinger, but the action was dismissed against the executors of the estate of Harry Bensinger. The appellee does not complain of the dismissal against the estate, and Coralie Bensinger, upon the appeal, insists that the judgment against her should be reversed for the following reasons: (1) the testimony supporting the claim is incompetent against her under Civil Code of Practice, Section 606(2); and (2) the court erred in permitting the filing of the several amendments to the original petition.

Civil Code of Practice, Section 606(2), precludes a person from testifying for himself concerning any transaction with one who is dead when the testimony is offered except to the extent of affecting one who is living and was present when such transaction took place. If the testimony supporting the claim involved transactions with Harry Bensinger occurring at a time when Coralie Bensinger was not present, the testimony would be incompetent against her as well as the estate.

On the whole, we do not think the testimony involves a transaction with a decedent within the inhibition of the section involved. The introduction of the Glenn contract, and the agreement by which the Bensingers assumed the obligations which it imposed, was not testimony relating to a transaction with the deceased. It would not have been competent for West to testify that he saw Harry Bensinger sign the contract unless it was signed in the presence of Coralie Bensinger, but there was no controversy concerning his execution of the agreement or that his purported signature was genuine. The other testimony supporting the claim relates to trips made by West to New Orleans, Detroit, Chicago, and other places during the time he was employed by the Bensingers, and the period of time spent on each of the trips together with expenses he incurred and paid. This testimony does not relate to a transaction with Harry Bensinger and was competent for the purpose of establishing the amount of the expenses and their payment by West.

We are not required to determine whether or not Harry Bensinger and Coralie Bensinger were partners in their employment of West. They both signed the agreement by which they assumed the obligations of the Glenn contract and a joint obligation was created, enforceable against either.

We are not impressed with appellant's argument that the amendments to appellee's petition were improperly filed. Although the original action against the executors sought a settlement of the estate of Harry Bensinger, this relief was denied and the action was resolved into a joint suit against the estate and Coralie Bensinger to recover upon an express contract. The amendments did nothing more than increase the amount originally sought and add Coralie Bensinger as a joint defendant. Courts are permitted a wide discretion in allowing amendments and this discretion is limited only by the requirement that the amendments must be in furtherance of justice and not substantially change the cause of action or defense. Bullock v. Young, 252 Ky. 640, 67 S.W.2d 941; Crittenden County v. Towery, 264 Ky. 606, 95 S.W.2d 233. We do not think the court abused its discretion in permitting the amendments here.

Although not argued in appellant's brief, the record presents more difficult questions upon which the authorities are not altogether in agreement. A correct disposition of...