Farrington v. Richardson

• Decision Date: 07 January 1944
• Citation: 16 So.2d 158,153 Fla. 907
• Parties: FARRINGTON v. RICHARDSON.
• Court: Florida Supreme Court

16 So.2d 158

153 Fla. 907

FARRINGTON v. RICHARDSON.

Florida Supreme Court

January 7, 1944

Appeal from Circuit Court, Pinellas County; John U Bird, judge.

Erle B Askew and Clair A. Davis, both of St. Petersburg, for appellant.

A. L Richardson, of St. Petersburg, for appellee.

SEBRING, Justice.

Elmer J. Farrington sued Frank B. Webster at law to recover damages for an alleged breach of a parol contract of employment. From the declaration in the case it appears that Webster owned and maintained a home at St. Petersburg, Florida. He was in ill health and lived alone. Having no one to attend him, Webster proposed to Mr. Farrington that he and Mrs. Farrington move into the Webster home and there render such joint services as should be required in caring for him as long as he lived. As a consideration for the service to be rendered, Webster agreed to continue in effect a certain trust provision then appearing in his will which benefited the Farringtons, and also to pay all household and incidental expenses of the parties during the period. The trust provision referred to established a trust in certain assets of the testator, the net income therefrom, at the death of Webster, to be paid to Mrs. Farrington for life, and upon her death, or in event she predeceased Webster, to be paid to Mr. Farrington for and during his lifetime.

Farrington accepted the proposal made by Webster, disposed of his home in the State of New York, abandoned his business there, and, in company with Mrs. Farrington, came to Florida to live with and care for Webster. This relationship began in March, 1938. Thereafter, Mr. and Mrs. Farrington were in constant attendance upon Mr. Webster until December 5, 1938. Farrington bathed, dressed, and shaved Webster. Farrington acted as his secretary and chauffeur. Mrs. Farrington did all the housework, made beds, prepared meals, washed dishes. According to promise, Webster paid all household and other expenses of the parties until December 5, 1938. On that date, and without just cause, Webster brought the arrangement to an end, ordering Farrington and his wife out of the house and refusing to take care of their expenses further. Also, he revoked the trust provision in the will which he had agreed to maintain in consideration of the services to be rendered, excluding the Farringtons from the will altogether.

Pleas to the declaration were filed. Pending the suit Webster died and the suit proceeded against his personal representative. The plaintiff and substitued defendant went to trial on the issues made by the pleadings. At the trial Mrs. Farrington was called as a witness for the plaintiff to prove the parol agreement between her husband and Webster. Objection was made to the proffered testimony on the ground that the testimony offered related to a transaction or communication with a person since deceased, the witness being interested in the event of the suit or deriving an interest or title from a party to the action. The trial judge sustained the objection and refused to admit the testimony, on that ground. The plaintiff announcing that he was without means of proving the oral contract except by the testimony of Mrs. Farrington, the court directed a verdict for the defendant. The only question brought here for decision is the propriety of the court's ruling on the admissibility of this testimony.

Section 90.05, Florida Statutes 1941, F.S.A., provides that: 'No person, in any court * * * shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto; provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party, or interested person derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, * * * against the executor, or administrator, * * * of such deceased person, * * *.'

To be excluded from testifying by reason of interest in the event of the action or proceeding, under this statute, the witness must be so interested in the result of the suit that he will gain or lose directly or immediately thereby; or the testimony to be given must be such that the record in the suit may be used as legal evidence for or against the witness in some action to prove or disprove the matters testified about by him. The disqualifying interest must be present, certain, and vested; not uncertain, remote or contingent. An interest simply in the question involved will not disqualify, under the proviso of the statute. The disqualifying interest of the witness must be in the event of the cause itself and not in the question to be decided. See Adams v. Board of Trustees, etc., 37 Fla. 266, 20 So. 266; Madison v. Robinson et al., 95 Fla. 321, 116 So. 31; Catlett v. Chestnut, as Executor, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212; Fields v. Fields, 140 Fla. 269, 191 So. 512; Fields v. Fields, 140 Fla. 323, 191 So. 827.

It is urged that Mrs. Farrington is interested in the event of the suit by force of Section 708.06, Florida Statutes 1941, F.S.A., which provides that: 'A married woman's wages * * * acquired by her in any employment separate from her husband shall be her separate property and subject to her own disposal, and she shall be entitled to sue for and recover the same as though she were a single woman.' We find ourselves unable to agree with this contention.

At the common law the earnings of a married woman living with her husband vested absolutely in the husband, unless he waived his right thereto. The statute limits the common-law rule only to the extent set forth in the statute. 30 C.J. 826. The effect of the statute is to allow a married woman to elect to perform labor on her own account. In such cases she is entitled to her own earnings and may sue for and recover the same as though she were a single woman. But the statute does not competely abrogate the common-law rule. Where there has been no election, or circumstances showing that the wife intended to avail herself of the privileges conferred by the statute, the husband's common-law right to her earnings remains unaffected, unless he waives his right thereto. Bowers v. Starbuck, 186 Ind. 309, 116 N.E. 301; Holcomb v. Harris, 166 N.Y. 257, 59 N.E. 820; Porter v. Dunn, 131 N.Y. 314, 30 N.E. 122; In re Moon's Estate, 219 Mich. 104, 188 N.W. 457; Wooster v. Eagan, 88 N.J.L. 687, 97 A. 291; Hess v. Clutz, 8 Ohio App. 57.

The theory of the case now before the court is that the contract upon which plaintiff sues was made by Farrington to furnish the joint services of himself and wife to Webster, during the lifetime of the latter. It appears from the evidence that such services were in fact rendered jointly. Nothing is shown to warrant even an inference that Mrs. Farrington was performing labor on her own account, or that she considered herself entitled to separate payment for her services. She has filed no separate claim or suit seeking compensation for her labors. She has made no contention that such labor as was performed by her was other than in the service of and subordinate to her husband. Indeed, she has appeared as a witness in the present suit to further the claim of her husband for compensation for labor performed by her and her husband jointly. It would seem, therefore, that she has ratified and sanctioned his claim. We are of opinion that under such circumstances the husband may sue in his own right and recover from a third person for the joint services rendered by husband and wife under the contract made by the husband. Not being entitled in such case to recover for the services she has rendered, the wife is not interested in the event of the suit, within the purview of Section 90.05, Florida Statutes 1941, F.S.A. On that ground, therefore, Mrs Farrington is not precluded...