First Nat. Bank v. Owen

• Decision Date: 07 December 1936
• Docket Number: 32445
• Citation: 177 Miss. 339,171 So. 4
• Court: Mississippi Supreme Court
• Parties: FIRST NAT. BANK v. OWEN

171 So. 4

177 Miss. 339

FIRST NAT. BANK v. OWEN

No. 32445

Supreme Court of Mississippi

December 7, 1936

Division B

1. EXECUTORS AND ADMINISTRATORS.

Evidence held to sustain determination that deceased, on going to claimant's home to live, promised, as compensation for her support and care, to make will leaving all her estate to claimant.

2. EXECUTORS AND ADMINISTRATORS.

Evidence in support of claims for services to a decedent must be clear and reasonably positive and be closely scrutinized.

3 EVIDENCE.

In contest of probated claim for services rendered to deceased testimony that deceased stated to witnesses, but not in claimant's presence, that deceased was paying and had paid claimant $10 per month for her board and laundry, held properly excluded; declarations being of self-serving nature.

4. EXECUTORS AND ADMINISTRATORS.

Where claimant and deceased were not related by blood and only remotely by marriage and deceased rendered no services in return, for claimant's support and care but had to be waited on much like an invalid and was well able to pay for cares and support furnished, such facts raised obligation on deceased's part to pay therefor at what care and support were reasonably worth, in absence of express proof that they were not to be paid for, or were to be compensated at, some other rate.

5 EVIDENCE.

Facts in respect to services and for support of one who had to be waited on much like an invalid and knowledge of value thereof are such as come within general experience and observation of all sensible persons, aad witness need not be skilled or expert to give testimony in regard thereto.

6. APPEAL AND ERROR.

Admission of incompetent testimony of physician who attended deceased, in contest of probated claim 1'or services rendered to and support furnished deceased, held not to require reversal where other evidence sustained decree for claimant.

7. EXECUTORS AND ADMINISTRATORS.

Where parties make oral agreement that one is to care for and support the other who is to make compensation therefor by way of will which is never made, party rendering care and providing support under such agreement may recover therefor on quantum meruit.

HON. WM. EDWARDS, Special Chancellor.

APPEAL from the chancery court of Jones county HON. WM. EDWARDS, Special Chancellor.

Contest by the First National Bank, administrator of Mrs. Elizabeth T. Peck, deceased, of a probated claim of Mrs. Rosa Owen. From an adverse decree, the administrator appeals. Affirmed.

Affirmed.

Shannon & Schauber, of Laurel, for apellant.

The lower court erred in permitting Dr. J. B. Jarvis, who treated Mrs. Peck, the deceased, to testify on behalf of the appellee. We submit that this testimony was incompetent and should have been excluded under section 5336 of the Mississippi Code of 1930 known as the "Communications Privilege." This statute has been construed and approved by many decisions of this court.

Railroad Co. v. Messina, 109 Miss. 143, 67 So. 963; I. C. R. Co. v. Messina, 111 Miss. 884, 72 So. 779; Hamel v. Railroad Co., 113 Miss. 345, 74 So. 276; Newton Oil Mill v. Spencer, 116 Miss. 568, 77 So. 605; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; McCaw v. Turner, 126 Miss. 260, 88 So. 705; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 106 So. 753, 142 Miss. 210.

The lower court erred in excluding the testimony offered by the appellant showing that Mrs. Peck, during her lifetime, agreed to pay Mrs. Owen, the appellee, the sum of ten dollars a month for room and board and twenty-five cents a week for washing. We submit that these statements made by Mrs. Peck were competent on the grounds that they were statements made by her against her interest, that is, showing that she had agreed to pay for room, board, and washing.

Jones on Evidence, chapter 10, "Hearsay," sec. 323, page 405.

Mrs. Owen, a widow, without property, was supported by her own labor, assisted by the wages of one son. Naturally Mrs. Peck would want to pay something monthly for her board and lodging: During that time Mrs. Peck drew from her savings account in the First National Bank of Laurel, Mississippi, the sum of nine hundred twenty-seven dollars, deducting the five hundred dollars that she loaned, would leave four hundred twenty-seven dollars unaccounted for, which would more than enable her to have paid Mrs. Owen the amount she had agreed upon. But whether she paid this ten dollars a month board and lodging and twenty-five cents a week for washing, or not, is immaterial. Mrs. Owen would be entitled to recover this amount, which is about four hundred twenty-seven dollars, provided it could not be shown that it had been paid by Mrs. Peck.

Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611.

From this record there can be no doubt but what it was the intention of Mrs. Peck to make a will and leave all of her property to Mrs. Owen, but for some reason Mrs. Peck died before this will was made. Since the will was not made, we contend that the property should go to the heirs of Mrs. Peck.

Ellis v. Berry, 145 Miss. 652, 110 So. 211.

If for nothing else, we think this case should be reversed in order that the court might be advised as to what was a reasonable value for the services rendered by appellee and since the case should be reversed, we think on a retrial appellant should be permitted to prove that Mrs. Peck had an agreement with Mrs. Owen during Mrs. Peck's lifetime by which Mrs. Peck was to pay her ten dollars a month for board and lodging and twenty-five cents a week for washing.

D. B. Cooley, of Laurel, for appellee.

We do not think it was error for Dr. Jarvis to state that Mrs. Owens gave Mrs. Peck hypodermics of insulin, and that he instructed her how to administer it; and that when he called to see Mrs. Peck professionally he always found Mrs. Owens there nursing her and looking after her.

Counsel for appellant contends that he should have been permitted to prove statements made by Mrs. Peck to third parties, not in the presence of Mrs. Owen, that she was paying ten dollars per month board and twenty five cents per week for washing, and that she paid it every month. It would hardly be contended that Mrs. Peck would not have a pecuniary interest in amount the board she was paying. If it was permissible to prove that she stated she was paying ten dollars, it would be permissible to prove that she stated she was paying one dollar; and to permit a witness to state that Mrs. Peck told her she paid her board every month would not be permitted under any circumstances.

Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; Jackson v. Johnson, 88 So. 410.

In the case at bar, it is agreed that Mrs. Peck was to pay for her board and room rent and other services. The amount she was to pay and whether or not she had paid it cannot be proved by statements made by Mrs. Peck to third parties, not in the presence of Mrs. Owen, because of her pecuniary interest, and her possible motive to falsify the facts declared. Her statements would be pure hearsay, and self serving.

The chancellor had all the facts before him as to the services rendered, and in view of their character, it was not necessary for claimant to introduce any opinion evidence on the question. Certainly this court will not reverse the case on this point...