Burke v. James E. Powers' Estate

• Decision Date: 04 May 1927
• Citation: 137 A. 202,100 Vt. 342
• Parties: WILLIAM F. BURKE, APPELLANT v. JAMES E. POWERS' ESTATE
• Court: Vermont Supreme Court

137 A. 202

100 Vt. 342

WILLIAM F. BURKE, APPELLANT v. JAMES E. POWERS' ESTATE

Supreme Court of Vermont

May 4, 1927

January Term, 1927.

APPEAL from decision of commissioners on claim for services rendered deceased. Plea, general denial. Trial by jury at the March Term, 1926, Rutland County, Graham, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

James P. Leamy for the plaintiff.

Lawrence Stafford & Bloomer for the defendant.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

FISH

This is an appeal from the decision of the commissioners of the estate of James E. Powers, deceased. The action was in quantum meruit under an implied contract to pay for services rendered. The plea was the general issue. Trial was by jury with verdict and judgment for the defendant. The plaintiff saved two questions for review.

1. The first exception is to the admission of evidence of the payment of $ 1,000 to the plaintiff from an insurance policy on the life of the deceased. The plaintiff is a nephew of the wife of the deceased, who died September 6, 1924. The deceased died December 31, 1924. From the time the plaintiff was 10 years of age until he became 21 he made his home with the deceased and his wife. They were farmers living in Middletown Springs. They had a dairy, made maple sugar, and raised annually from 400 to 1,300 bushels of potatoes. After leaving the farm the plaintiff married and had a large family of children, two of the older of whom were girls, who spent their summer vacations in the family of deceased on the farm. The plaintiff resides in Rutland, where he has employment with the Rutland Railroad. After leaving the farm it was his custom to return to it to help plant and dig the potatoes and to do other labor thereon such as sugaring, haying, and doing chores. He also assisted in marketing the potatoes. He made some gifts to the deceased and his wife and received from the deceased each year from 20 to 30 bushels of potatoes and occasionally other products from the farm. He seeks to recover on his claim in this case for all services rendered during the six years preceding the death of the deceased.

To meet the evidence of the plaintiff that the deceased had said that "he would be cared for" and that he would be "taken care of in the proper time," the defendant showed that following the death of the deceased the plaintiff received $ 1,000 from a life insurance policy on his life. The proof of this was from the testimony of two witnesses. To the testimony of the first witness the plaintiff objected on the grounds that the matter had not been pleaded and that it raised a collateral issue that was immaterial and which would prejudice the jury. To the admission of this testimony the plaintiff saved an exception, but made no objection and saved no exception to the testimony of the second witness whose evidence was substantially the same as the first. It appears from the evidence that the insurance policy in question was at first made payable to either the wife or the estate of the deceased, and that later the beneficiary was changed to Miss Josephine Bethel; that Miss Bethel felt that she was not entitled to the insurance and after the death of the deceased assigned the policy to the plaintiff who was paid the amount thereof by the insurance company.

The evidence concerning the insurance was clearly inadmissible for the reason that no logical connection appeared between the payment of the policy to the plaintiff and what the deceased said about taking care of him, and its admission must have been harmful. But the testimony of the first witness, taken under exception, became harmless when the testimony of the second witness to the same fact was received without objection or exception. This results from rule 7 of this Court (now rule 9), which provides that no judgment shall be reversed for the improper admission of evidence, or other error, unless this Court shall believe that the error has injuriously affected the rights of the parties. It cannot be said under the foregoing rule as a matter of law that the testimony excepted to added anything to that afterward received on the subject covered, and therefore on the record presented the exception cannot be sustained. This is in accord with the decisions of this Court. Duprat v. Chesmore, 94 Vt. 218, 224, 110 A. 305; Wellman v. Mead, 93 Vt. 322, 334, 107 A. 396.

2. The second exception raises the question of the right of the plaintiff to testify under G. L. 1892, which among other things, when an executor or administrator is a party, gives the other party the right to meet or explain the testimony of living witnesses...