Grubbs v. Ray

• Citation: 141 S.W. 17,159 Mo.App. 426
• Parties: MARTHA GRUBBS, Respondent, v. O. P. RAY, Administrator of the Estate of WILLIAM RECOB, Deceased, Appellant
• Decision Date: 20 November 1911
• Court: Kansas Court of Appeals

141 S.W. 17

159 Mo.App. 426

MARTHA GRUBBS, Respondent, v. O. P. RAY, Administrator of the Estate of WILLIAM RECOB, Deceased, Appellant

Court of Appeals of Missouri, Kansas City

November 20, 1911

Appeal from Chariton Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

Roy W Rucker and W. W. Rucker for appellant.

(1) The court erred in permitting witness, Mrs. Rodgers, to testify on behalf of plaintiff, for the reason that she was plaintiff's agent in making the alleged contract detailed in evidence and the other party to said contract, William C Recob, was dead. Defendant's objection to her competency should have been sustained by the court. Edwards v Warner, 84 Mo.App. 202; Donnell Newspaper Co. v. Jung, 81 Mo. 581; Walterman v. Shenick's Est., 102 Mo.App. 142; Green v. Ditsch, 143 Mo. 8; Bank v. Slattery's Admr., 166 Mo. 491; Brewery Co. v. Rohling, 133 Mo.App. 67. (2) The trial court erred in giving instruction number 3, requested by plaintiff, for the reason that said instruction assumes and expressly declares the truth of the most important fact in controversy; and, for the further reason that said instruction number 3, given for plaintiff, is contradictory of and in direct conflict with all the other instructions in the case. Dulaney v. Sugar Ref. Co., 42 Mo. 662; Merriwether v. Kansas City Cable Co., 45 Mo.App. 532; Crow v. Railroad, 212 Mo. 610; Klein v. St. Louis Transit Co., 117 Mo.App. 696; Browning v. Railroad, 118 Mo.App. 458; Orscheln v. Scott, 79 Mo.App. 540; Bluedorn v. Railroad, 108 Mo. 450; McKinnon v. Coal Mining Co., 120 Mo.App. 164; McNichols v. Nelson, 45 Mo.App. 454; Wallack v. St. L. Transit Co., 123 Mo.App. 167; Russell v. Poor, 133 Mo.App. 729; Ross v. Street Ry. Co., 132 Mo.App. 481; Baer, Seasongood & Co. v. Lisman, 85 Mo.App. 320; Meily v. Railroad, 215 Mo. 586; Haynor v. Light Co., 129 Mo.App. 698.

John D. Taylor for respondent.

OPINION

JOHNSON, J.

This suit was commenced in the probate court of Chariton county to recover a demand for wages against the estate of William C. Recob, deceased, alleged to have been earned under a contract of employment. A trial in the circuit court, to which the cause was appealed, resulted in a verdict and judgment for plaintiff in the sum of one thousand dollars. Defendant, administrator, appealed to this court.

Plaintiff, a niece of William C. Recob, became an orphan at the age of four years and was reared in the home of Mr. Recob, as a member of his family until she attained her majority in 1896, when she went to Kansas City to live with her half sister, Daisy D. Rodgers. Being incompetent to testify in her own behalf, plaintiff was compelled to rely on the testimony of Mrs. Rodgers for proof of the contract of employment she alleges was made between her and Mr. Recob. Defendant objected to the witness on the ground that she was the agent of plaintiff in the transaction and, therefore, incompetent. The objection was overruled and the witness was permitted to give testimony to the effect that shortly after plaintiff became a member of her family she received a letter from Mr. Recob urging her to have plaintiff return to his home. Witness showed the letter to plaintiff and then answered, asking Mr. Recob what provision he would make for plaintiff if she returned. He replied, in substance, that he and his wife were old, unable to do their work and that if plaintiff would come back and work for them he would pay her well for her services.

At this time Recob's family consisted of himself his wife and his sister-in-law who was blind. All were very old people and in need of service though it appears that Recob and his wife were vigorous and energetic for aged persons and did a great deal of the work on the little farm, a few miles from Keytesville, on which they lived and which appears to have comprised the substantial whole of their property. Plaintiff accepted the offer and for eleven years was the mainstay of the little family. She did most of the housework and performed outdoor labors usually done by farm hands. She was a faithful, attentive and very industrious servant and there are other witnesses than her half sister who testify to facts and circumstances tending to show that her status was that of a servant working for hire and not of a member of the family gratuitously serving its aged members. The death of Mrs. Recob, at the age of eighty-eight years, preceded that of her husband. There is evidence tending to show that after her death Mr. Recob became afflicted with a species of climacteric dementia which caused him to conceive so strong a dislike for plaintiff that she was forced to seek another home. A sister of Recob took her place but not until he had executed a deed conveying his real estate to a trustee for his sister's benefit. A few months later Recob died. An administrator of his estate was appointed and the estate was appraised at $ 77. During the whole period of her service plaintiff received no wages and was clothed at the expense of her half sister. The first point argued by defendant is that "the court erred in permitting witness, Mrs. Rodgers, to testify on behalf of plaintiff for the reason that she was plaintiff's agent in making the alleged contract detailed in the evidence and the other party to said contract, William C. Recob, was dead."

The rule is well settled that where one party to the contract or cause of action is dead, neither the other party nor his agent with whom...