Malone v. Harlin

• Citation: 278 S.W. 806,220 Mo.App. 102
• Parties: JAKE MALONE, RESPONDENT, v. W. T. HARLIN, ADMINISTRATOR, APPELLANT.
• Decision Date: 08 January 1926
• Court: Missouri Court of Appeals

278 S.W. 806

220 Mo.App. 102

JAKE MALONE, RESPONDENT, v. W. T. HARLIN, ADMINISTRATOR, APPELLANT.

Court of Appeals of Missouri, Springfield

January 8, 1926

Appeal from the Circuit Court of Howell County.--Hon. E. P. Dorris Judge.

AFFIRMED (on condition).

R. S Hogan and M. E. Morrow, of West Plains, for appellant.

(1) While formal pleadings are not required in Probate Courts accounts presented should be sufficiently specific to apprise those in charge of estates of the facts involved, so that they may be able to protect the interests intrusted to their care. Sec. 185, R. S. 1919; Watkins v. Donnelly, 88 Mo. 322; Carson v. Waller, 104 Mo.App. 621. (2) Both the plaintiff and his wife, under the facts of this case were wholly incompetent to testify as witnesses against the defendant administrator of a deceased person's estate. Proviso to Sec. 5410, R. S. 1919; Carroll v. Railroad, 157 Mo.App. 247; Taylor v. George, 176 Mo.App. 215; Leavea v. Railroad, 171 Mo.App. 24. (3) An instruction is erroneous that permits the recovery for work done by another than plaintiff, even if that other person be a member of plaintiff's family. Christianson v. McDermott, 123 Mo.App. 448. (4) Under the complete emancipation of married women from all her common-law disabilities, she is considered a feme sole, in all legal and business matters; and is entitled to the wages of her separate labor. Secs. 7323 and 7328, R. S. 1919; Ingals v. Ferguson, 138 Mo. 358; Tyler v. Tyler, 78 Mo.App. 240. (5) Instructions that unduly repeat even a correct proposition of law are subject to condemnation. Reeves v. Lutz, 177 S.W. 764. (6) An instruction purporting to cover the whole case and allowing a verdict for the plaintiff must not ignore matters of defense. Johnson v. Building Company, 171 Mo.App. 543; Beggs v. Shelton, 173 Mo.App. 127; Kelly v. St. Joseph, 170 Mo.App. 358. (7) Defendant had a right to have all his theories of defense submitted to the jury. Feurt v. Lotspeich, 273 S.W. 240. (8) Statements of counsel, during argument, of matter not in evidence, with the obvious purpose of arousing the prejudice of the jury, or to create a feeling of resentment against, or aversion to, the opposite party, are particularly objectionable. Jackman v. Railroad Co., 206 S.W. 244, and cases therein cited. (9) A verdict that does not dispose of all the issues in the case may be vacated on motion in arrest of judgment. Henderson v. Davis, 74 Mo.App. 1; Winkelman v. Maddox, 119 Mo.App. 658.

Green, Green & Green and B. L. Rinchart, of West Plains, for respondent.

The plaintiff was competent to testify in this case as to facts or conditions after the appointment of an administrator. Sec. 5410, R. S. 1919. If respondent testified indirectly as appellant complains in his brief about anything that happened prior to the appointment of the administrator no proper objections were made as the only objections made were "We object to that" which under the law means nothing and if such testimony was testified to by respondent it was not responsive to the questions asked him and the only way that the same could be reached would have been a motion to strike out. State v. Pecull, 131 Mo. 312; Vett v. Johnson, 43 Mo.App. 300; Forrester v. Mo. Pac. Railroad Co., 15 Mo. 175; Thomas v. Metropolitan Railway Co., 125 Mo.App. 131; Lutz v. Railroad Co., 123 Mo.App. 499; Murphy v. Railroad, 125 Mo.App. 269. Mrs. Malone was a competent witness she not being a party directly interested in the suit. 1921 Sessions Acts, page 3927. Before the enabling act of 1921 was passed a married woman was competent witness to testify in suit for her husband when she acted as the agent of her husband. Stanton v. Ryon, 41 Mo. 510; Wagner v. Binder, 187 S.W. 1153; Orthwein v. Nolker, 234 S.W. 787. Simply a recital that defendant objects to a question is insufficient. Stephons v. Fisher, 161 Mo.App. 386; State v. Crone, 209 Mo. 316; Fuller v. Robbins, 230 Mo. 22. If no valid objection is made in the trial court the objection comes too late in appellate court. State v. Speyer, 207 Mo. 540; State v. Brown, 209 Mo. 413; State v. Wellman, 253 Mo. 302. A disqualifying interest such as to make one incompetent to testify against the party deceased must be a legal interest, a certain or immediate one as distinguishable from an interest based or resulting from friendship or hatred or from consanguinity or other social or domestic relation. 2 Greenlief on Evidence, page 386; Wagner v. Bender, 187 S.W. 1153; Allen Estate v. Boeke, 254 S.W. 864. In order for a witness to be incompetent to testify he must be both an interested party and a party to the cause of action. Lean & Zinc Co. v. Lead Co., 251 Mo. 741. Objections to argument of counsel are untenable where attorney was only answering argument of opposing counsel or when the same was provoked by opposing counsel. Sims v. Speilman, 232 S.W. 1072; Hukshold v. Railway Co., 90 Mo. 548. The trial judge is in a better position to determine whether remarks are prejudicial than the appellate court. Muelback v. Muelback, 242 S.W. 178; Wilson v. Peppard, 243 S.W. 394. Where a jury finds for plaintiff and specifies the counts or items upon which such findings are based it is in effect a finding for defendant on all other counts. Phillips v. Geysor, 129 Mo.App. 396; Hoyle v. Farguharson, 80 Mo. 377; Downing v. Railway, 70 Mo.App. 657. The demand set out in this case was sufficiently definite and certain. Wood v. Land, 35 Mo.App. 381; Smith v. Williams, 123 Mo. 479; Gammon v. McDowell, 208 Mo.App. 619; Smith v. Collins, 243 S.W. 219.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

Plaintiff filed a demand against the estate of John T. Holmes, deceased, in the probate court of Howell county, for the sum of $ 6202. The demand was divided into four items, the first of which was a claim for nursing deceased during a period of three years and twenty-two days at $ 5 per day amounting to $ 5895; the second item for laundry work over a period of 130 weeks at $ 1.50 per week; amounting to $ 195; the third item for "cleaning up" after the death of the said John T. Holmes amounting to $ 100 and a further item for board of one Fitz Higginbotham and family during the last illness of the deceased for a period of three days, amounting to $ 12, all of which totals the amount first above stated.

The cause was first tried in the probate court and thereafter, on appeal went to the circuit court of Howell county where a verdict was rendered in favor of plaintiff separately on three of the above items as follows: $ 2755 on the first item for nursing; $ 195 on the second item for laundry work; $ 50 on the third item for cleaning the house; and no verdict was rendered on the fourth item amounting to $ 12. The total verdict and judgment was $ 3000, from which defendant has appealed to this court.

The high points of error raised by appellant in this case are: (1). Incompetency of Jake Malone and wife as witnesses against the defendant administrator. (2). The giving and refusal of Instructions. (3). Improper remarks of counsel in the closing argument at the trial. (4). Excessive verdict. (5). Failure of verdict to respond to all the issues raised in the demand filed.

We shall first confine ourselves to the question of the competency of Jake Malone, the claimant, to testify in this case. When Jake Malone was offered as a witness by plaintiff an objection was sustained to his testifying because the other party to the alleged contract was dead. The witness was, thereafter, permitted to testify as to what occurred after the death of Holmes relative to cleaning up the house. During the course of his examination he made some statements relative to matters that occurred prior to the death of Holmes. Among other things witness stated that "After the death of Holmes we cleaned up, well it was just awful where the old man was. We would get him out of bed, he couldn't control himself. As he would come out of bed, I would have him in my arms lots of times. The old man was in bad shape." Such evidence was no doubt improper coming from the claimant, but as no proper objection was made, we are unable to consider it here. Mr. Malone, the claimant, was competent under our statute to testify as to what occurred after the appointment of the administrator. [Sec. 5410, R. S. 1919.] There is evidence that the administrator had been appointed prior to the occurrence of the facts to which this witness testified, and in fact, the conversation which witness relates was had with the administrator. We rule against defendant, in so far as witness Jake Malone is concerned.

It is next urged that Mrs. Jake Malone was incompetent as a witness. When she was offered counsel for defendant made the following objection: "We object to this witness testifying, because she is the wife of the plaintiff and an interested party, and was a party to claimed cause of action also agent for her husband, and other party, Holmes, is dead, and she herself filed a claim against the estate at one time, and is directly interested in this suit, and she is incompetent to testify against this estate." There can be no question that the fact that this witness was the wife of the claimant would not disqualify her as a witness. Section 5415, Revised Statutes, 1919, as amended by the Laws of 1921 at page 392, provides that: "No married women shall be disqualified as a witness in any civil suit prosecuted in the name or against her husband, whether joined or not with the husband as a party." The Act of 1921 changed the rule as to the wife's competency. Prior to the passage of the Act referred to, the wife was only competent in certain particular cases, among them being matters of business when the transaction was had and conducted by the...