Hill v. Johnson

• Decision Date: 31 January 1944
• Docket Number: No. 20390.,20390.
• Citation: 178 S.W.2d 801
• Parties: HILL v. JOHNSON.
• Court: Missouri Court of Appeals

178 S.W.2d 801

HILL v. JOHNSON.

No. 20390.

Kansas City Court of Appeals. Missouri.

January 31, 1944.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

"Not to be published in State Reports."

Suit by Opal B. Hill, executrix of the estate of O. S. Hill, deceased, against James A. Johnson to recover attorney fees allegedly earned by deceased. From a judgment for plaintiff, the defendant appeals.

Affirmed.

O. H. Swearingen, of Kansas City, for appellant.

Ira B. Burns, of Kansas City, for respondent.

SPERRY, Commissioner.

This is a suit brought by Opal B. Hill, executrix of the estate of O. S. Hill, deceased, plaintiff, against James A. Johnson, defendant, wherein plaintiff sought judgment for unpaid attorney fees earned by deceased. Trial to a jury resulted in verdict and judgment for plaintiff and defendant appeals.

Plaintiff pleaded that deceased had rendered to defendant certain legal services of the value of $4500, and that payment therefor had never been received. Defendant filed answer wherein he admitted that said services had been rendered to him by deceased, and denied all other allegations of the petition. He alleged that defendant had loaned deceased stated sums of money from time to time as evidenced by certain described instruments and transactions; that he paid to deceased, during his lifetime, divers and sundry other amounts; and denied that the services of deceased so rendered to defendant were of the value of $4500.

Plaintiff offered substantial evidence which tended to prove the rendition to defendant by deceased of the services alleged, and that said services were of the reasonable value of $3500.

Defendant offered the testimony of a number of witnesses, which testimony tended to prove that he had paid to deceased, over a period of years, sums of money totaling several thousand dollars. This testimony was supported by the introduction into evidence of certain promissory notes and canceled checks signed and indorsed by deceased; but the circumstances surrounding the execution of said notes and the payment to deceased of said sums of money were left in a very indefinite, vague, and inconclusive state, as was also the question of payment or non-payment of said notes and the repayment of the cash advancements. There was testimony which tended to prove that deceased had stated to defendant in the presence of others that deceased had been paid in full for the services which are the basis of this suit. Defendant had filed no claim in probate court based on loans or advances made by him to deceased, and the whole record discloses that deceased had advised defendant in connection with many legal questions and causes and had had many transactions with him over a period of years running back to 1932.

The only questions properly raised by defendant, and before us for decision, relate to the propriety of the exclusion of certain testimony offered by defendant as a witness testifying in his own behalf. As these questions are ruled we shall set out such facts appearing in the record as are necessary to their proper understanding.

Mrs. Hill, executrix, testified to the effect that she was appointed executrix February 26, 1942; that prior to her appointment she talked with defendant, at his place of business; that she demanded payment of the fee sued for in this case; that defendant asked if an administrator had been appointed and was informed that none had been; and that defendant said he would settle with the administrator after one was appointed. This testimony was elicited and given without objection on the part of defendant. Defendant offered to testify concerning three conversations had with Mrs. Hill but was unable to state specifically when said conversations, or any of them, occurred with reference to the date of her appointment as executrix. He offered to testify to the effect that she at no time demanded payment of the fee herein sued for. Plaintiff objected to this offered testimony of defendant in this connection on the grounds that, since defendant could legally testify only as to conversations had with executrix after her appointment, it was incompetent because defendant could not fix the time of the occurrence of the conversations. The action of the court in sustaining said objection is assigned as error.

It is defendant's contention that he may not be completely disqualified, for all purposes and under all conditions, as a witness, even though the other party to the contract which forms the basis of this law suit is dead. There is no question but that this is the law. The rule is founded on the underlying reason for the existence of the statute covering the subject and is well expressed by Judge Walker, as follows:

"The purpose of this statute, it is true, is to silence the voice of one of the parties to a litigated proceeding, where death has hushed into eternal stillness that of the other; but it must be construed in a reasonable manner, and one compatible with the purpose of its enactment. Weiermueller v. Scullin, 203 Mo. 466, 101 S.W. 1088. This statute was not intended to render incompetent as a witness for all purposes the surviving party to the proceeding, but only to the extent that his testimony might be subject to question by the other party if living. In other words, the disqualification is not general, but is limited to transactions between the witness and the party then dead." Elsea v. Smith, 273 Mo. 396, loc. cit. 408, 202 S.W. 1071, 1073.

If it be conceded that Mrs. Hill's testimony had the legal effect of opening the mouth of defendant so that he could rightfully contradict or explain her testimony (See Hathaway v. McBride, Mo.App., 198 S.W. 1143), yet it must be held that the court committed no error which requires reversal of the judgment. It will be noted that Mrs. Hill did not purport to...