Feltes v. Tobin

Decision Date15 April 1919
Docket Number32500
Citation171 N.W. 739,187 Iowa 11
PartiesKATE FELTES, Appellant, v. EDWARD TOBIN, Administrator, Appellee
CourtIowa Supreme Court


Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.

ACTION to recover for labor resulted in judgment dismissing the petition. Plaintiff appeals.


Anna M Utt and G. A. Barnes, for appellant.

Frantzen & Bonson and F. D. Gilloon, for appellee.




Peter Lehnhoff departed this life July 24, 1916. Edward Tobin was appointed administrator of his estate. The claimant is a daughter of decedent's, and, in her amended and substituted petition, alleges that she attained her majority in November, 1886. She claims to have rendered services for decedent from then until her marriage, February 17, 1896, in pursuance of a contract with him, under the terms of which he undertook to pay her $ 225 per year and interest at 5 per cent per annum; and that, though she sometimes worked for others, she always turned her wages so earned over to decedent. From this, as she alleged, should be deducted about $ 25 per annum paid out by decedent for claimant's clothing, and the difference allowed her as a claim against the estate. The evidence will be recited sufficiently, in passing on the rulings as to admissibility of evidence, to enable us to ascertain whether it was sufficient to carry the issues to the jury.

I. The family lived on a farm. Plaintiff testified that, throughout the period in question, she engaged in all kinds of work; that she was in and out of doors on the farm; and that wages earned elsewhere were turned over to her mother.

"Q. Do you know how much your services were worth a year for the work that you performed, as you have testified to?"

Counsel for defendant objected, "as incompetent, irrelevant, and immaterial, the witness not having shown herself competent to testify; and furthermore, this claim being founded on oral contract, the question of value of services is immaterial." This objection was sustained on the ground "that an oral contract for a certain rate for services" was alleged in the petition. The ruling was correct, as the evidence sought to be elicited would have had no tendency to establish the contract alleged.

II. The witness was asked "to state how you came to go to work for these different parties." "A. Why, they both sent me out, my father and both of them; so I obeyed, and went out." Counsel for defendant moved "to strike out the answer as disclosing a personal transaction with the deceased," and the motion was sustained. That the evidence disclosed a personal transaction with decedent did not render it inadmissible. In the absence of any objection to the competency of the witness, there was no ground for the exclusion of the evidence. McDonald v. Young, 109 Iowa 704, 81 N.W. 155.

III. This question was asked: "You may state whether or not your mother sent you out." Objected to as incompetent, irrelevant, and immaterial, and having no bearing on any issue in this case. Objection was overruled, and witness answered: "Yes, sir, she sent me out; they were both willing to let me go." Defendant moved to strike that part of the answer "they were both willing to let me go," as stating a conversation or personal transaction with a person since deceased, and prohibited under Section 4604 of the Code. The motion was sustained. The section of the Code mentioned does not prohibit such testimony. It merely declares a witness incompetent to testify under conditions specified; and, the motion not being based on the incompetency of the witness, the ruling might well have been otherwise. Without objection, the witness testified that she turned the money, when received, over to her mother, and that the latter turned it over to her father.

IV. The same witness testified to having heard a conversation between her father and mother, August 15, 1889, when she was in another room upstairs, and they downstairs; that the stairway was in the hall; and that she could hear what they were saying.

"Q. Now, just tell the court what your father said. A. He said I was to get my wages, whether he was dead or alive. If the last one was there, I was to get my wages; she was to pay it out. Q. What reply, if any, did your mother make at that time? A. She said she was satisfied for me to get it. Q. Was there anything said at that time in the conversation as to what amount your wages were to be? A. Yes, sir. Q. What was said about that? A. Why, he promised me $ 225 a year to stay home with him, and she was satisfied."

Counsel for defendant moved "to strike out the answer, the testimony evidently showing a personal transaction with one since deceased." The objection was sustained. This was error, the competency of the witness not having been challenged.

The witness was then asked to state the conversation, if any, "in regard to the amount you are to get as wages." Objection was interposed, and the court directed witness to relate the conversation "that took place between your father and mother at that time relative to the amount that was to be paid to you as services." "A. Why, he told her that I was going to get it. Q. What, if anything, was said about the amount?" There was an objection, and the court again directed the witness to "give the conversation, as near as you are able to remember it; just what your father said and your mother said, if anything." "A. He said I was entitled to the money, and I was to get the money; and she said she was satisfied to give it, as I worked there so long, and both of them were satisfied then that I was to get so much. Q. Was the amount stated by either of them at that time? A. $ 225, he said."

The witness then explained that the father had said this to the mother; that, the day before, she had had a conversation with her mother "in regard to going away from home." "Q. Tell the court what that conversation was with your mother about leaving home. A. Why, they said they would give me that $ 225 for staying home; if I would stay home, they would give me that, and I could do any kind of work then."

Counsel for defendant moved that the answer be stricken out, "which details a state of facts prohibited by Section 4604 of the Code, being a conversation had with the father, as well as the mother, and at the time the conversation was had, the witness was not of age. Furthermore, it is barred by the statute of limitations." The motion was sustained. The fact that the witness was not of age did not disqualify her to testify, nor was there anything in this evidence to raise the bar of the statute of limitations. The evidence of the conversation with the decedent is not prohibited by Section 4604 of the Code, and for these reasons, the court erred in sustaining the motion.

The court refused to permit the witness to testify that a conversation with decedent on the subject of her leaving home occurred on the day before she heard the conversation between her father and mother, hereinbefore testified to.

The question could not be answered without stating the subject of the supposed conversation, and in that way indicating the nature of the communication between them. She might have testified to having had a conversation, but the inquiry sought to go further, and ascertain what it was about, and to that extent, sought to elicit her conclusion as to the subject-matter of the talk, which necessarily must have been deduced from what was said. The witness was incompetent as such, not only to repeat the conversation, but to testify to conclusions to be drawn therefrom. The ruling has our approval.

"Q. You state whether or not you had any conversation or any talk with your mother on the day before you heard this talk between your father and mother when you were upstairs. A. Yes, I said I was going to leave, if they wouldn't make just a particular statement; that I should not work there for nothing; and they made a rule they would give me so much wages a year."

Counsel for defendant moved "to strike the answer out, as being clearly incompetent under Section 4604 of the Code, the answer disclosing that conversation was had with the father, as well as mother." The ruling was that "it may go out until a sufficient foundation is laid." As pointed out before, the ruling was erroneous. The evidence was admissible, though the witness may have been incompetent to give it; but her competency was not challenged. The witness then testified that she "had made arrangements for going away from home. After making the arrangements to go away from home, I remained. After that conversation I have given with father and mother, upstairs, I remained home until I was married, in the neighborhood of ten years."

The witness then testified that her mother had furnished her clothing which would amount to about $ 25 a year, and was asked whether, after she became of age, and before she got married, "there was any other conversation between your father and mother or anyone else, in which you took no part, in regard to your wages, or pertaining to that subject." "A. Yes, sir, there was. It was the week before I got married. They said they would pay my wages, but they had no money now; they wouldn't get it until later." Counsel for defendant moved to strike out the answer, for that the witness was prohibited from testifying, under Section 4604 of the Code, and the court remarked, "I think you had better lay more of a foundation."

This did not exclude the answer, but permitted the claimant to make a showing such as to obviate the statute mentioned, by saying that the conversation occurred when she was in an opposite room, and "father and mother were in...

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