Malone v. Harlin

• Decision Date: 08 January 1926
• Docket Number: No. 3913.,3913.
• Citation: 278 S.W. 806
• Parties: MALONE v. HARLIN.
• Court: Missouri Court of Appeals

278 S.W. 806

MALONE v. HARLIN.

No. 3913.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Action by Jake Malone against W. T. Harlin, administrator. From a judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

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

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

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 $6,202. The demand was divided into four items, the first of which was a claim for nursing deceased during a period of 3 years and 22 days at $5 per day, amounting to $5,895; 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 3 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: $2,755 on the first item for nursing; $195 on the second item for laundry work; $50 on the third item for cleaning the house. No verdict was rendered on the fourth item, amounting to $12. The total verdict and judgment was $3,000, 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 time. The old man was in bad shape."

Such evidence was no doubt improper, coming from 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. Section 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 caused 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, R. S. Mo. 1919, as amended by the Laws of 1921, at page 392, provides that

"No married woman 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 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 wife as agent of her husband. That being true, defendant's objection to her competency, on the ground that she was agent for her husband, would be untenable, even prior to the enactment of the 1921 statute.

Defendant further objected to the competency of this witness on the theory that she was directly interested in the suit. At the time this objection was made, the witness had not testified, and the court had before it for consideration only the amended petition or claim in which Mrs. Jake Malone did not appear as a party, and there was nothing to indicate she had any interest whatever in the claim. Under such circumstances the court properly overruled the objection. The testimony of Mrs. Jake Malone, later, indicated that she did have an interest in this claim; but it was the duty of defendant to object to her testimony after such showing was made, and to move that all her testimony be excluded. Failing in this, we cannot attribute error to the trial court for receiving this testimony before any showing was made that this witness had an interest in the claim. Evidence that is competent at the time the objection is made may, later, become incompetent, and in that event counsel should ask that it be stricken out. Young v. Thrasher, 61 Mo. App. 413; Vette v. Leonori, 42 Mo. App. 217.

The instruction to which defendant raises objection is No. 4, given for plaintiff, in which the jury is told that, as to plaintiff's demand for cleaning house, such work, if done, was occasioned by deceased's condition before his death, and that if such cleaning was absolutely necessary, and that plaintiff expected or ought to have expected that he would be paid therefor, then the jury would be authorized to find that there was an implied promise to pay for the reasonable value of such work, even though there was no express contract or agreement to pay' therefor. Appellant contends that this instruction is erroneous, because it does not require the jury to find: (1) That the work was done by plaintiff; (2) that he intended to charge for same; (3) that he had not been paid for it. The case of Burt v. Gabbert, 174 Mo. App. 521, 160 S. W. 838, is cited in support of these contentions. We do not believe the case cited upholds appellant's position relative to this instruction. In the Burt Case an instruction was given that, if the jury found from the evidence that...