Schwartz v. Mercantile Trust Co.

• Decision Date: 08 December 1925
• Docket Number: No. 18932.,18932.
• Parties: SCHWARTZ v. MERCANTILE TRUST CO.
• Court: Missouri Court of Appeals

279 S.W. 253

SCHWARTZ v. MERCANTILE TRUST CO.

No. 18932.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Julia Schwartz against the Mercantile Trust Company, executor of the last will of Melinda Zimmermann, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

William Maffitt Bates, of St. Louis, for appellant.

Sheridan, Sheridan & Robertson, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal services rendered by plaintiff for decedent during a period of more than 18 years, beginning in the year of 1903 and continuing to the date of her death in 1922. The cause was tried to a jury; there was a verdict and judgment for plaintiff in the sum of $6,500, and the defendant appeals.

The decedent was 88 years old at the time of her death. During the period of the plaintiff's service decedent suffered from the infirmities of age. She was afflicted, too, with rheumatism and other ailments, and was frequently bedfast. The services rendered the decedent by plaintiff consisted chiefly of sewing and dressmaking, clerical work, nursing, personal attendance, and companionship. The plaintiff never received any compensation for her services, though the decedent frequently promised her that she should be well paid therefor.

Upon this appeal the defendant assigns errors as follows: (1) The court erred in permitting Mrs. Mannheim to testify, over objection of counsel for defendant, that it was a general order, and that she heard that, when Mrs. Zimmermann was ill, Miss Schwartz was to be telephoned for. (2) The court erred in refusing to permit counsel for defendant to cross-examine Dr. Sheahan as to a conversation with decedent, in which she told the doctor that she had paid plaintiff $5 a day for her services. (3) The court erred in refusing to permit counsel for defendant to cross-examine Dr. Sheahan as to whether decedent treated plaintiff as a paid servant. (4) The court erred in permitting Mrs. Lesser to testify how often decedent's daughters called on her. (5) The court erred in permitting Mrs. Kilburz to testify as to a conversation over the telephone with an unidentified person. (6) The court erred in permitting Mrs. Heebe to testify without being properly qualified, as an expert as to the value of plaintiff's services. (7) The court erred in refusing to permit counsel for defendant to cross-examine Mrs. Heebe as to her qualifications to testify concerning the value of plaintiff's services. (8) The' court erred in permitting counsel for plaintiff to read the will of decedent to the jury. (9) The court erred in permitting witness Sutterfield to testify as to the visits paid by decedent and plaintiff to the former's safe deposit box at the Mercantile Trust Company, although there was a written record made of such visits. (10) The court erred in refusing to permit counsel for defendant to examine Mrs. French as to her relations with her mother. (11) The court erred in refusing to permit defendant to show the execution by decedent of a document drawn by her daughter, Mrs. Jones, and stating in substance: "I have paid Julia Schwartz everything that I owe her," and which document at or before the death of decedent, plaintiff willfully and maliciously stole, took, and destroyed, thereby preventing its introduction in evidence in this case. (12) The court erred in overruling defendant's demurrer to the evidence at the close of plaintiff's case, because counsel for plaintiff admits his witnesses were guilty of perjury. (13) The verdict of the jury is against the weight of the evidence. (14) The verdict of the jury is excessive. Of these in their order.

1. Mrs. Mannheim did not testify that she had heard that when Mrs. Zimmermann was ill Miss Schwartz was to be telephoned for. She testified:

"Miss Schwartz attended Mrs. Zimmermann when she was sick. She had no trained nurse. Whenever she was sick, it was Miss Schwartz that was telephoned for; that was Mrs. Zimmermann's orders. Mrs. Zimmermann told me herself to call Miss Schwartz."

The record shows that, after the witness had so testified, the defendant's counsel objected to the testimony "as incompetent." The objection was properly overruled.

2. The declarations of the decedent sought to be elicited on cross-examination of Dr. Sheahan were self-serving, and were properly excluded. Defendant's counsel relies on the rule that, when once a transaction, conversation, or course of conduct is offered in evidence as an admission, the party against whom it is offered is entitled to the whole of the transaction, conversation, or conduct, even though it contains self-serving declarations which would otherwise be inadmissible. We can see no proper application to be made of this rule here. Dr. Sheahan testified on his direct examination that he had frequently attended the decedent when she was ill, and that on these occasions plaintiff was usually in attendance as her nurse, and he stated somewhat in detail the services she rendered, but he did not testify to any conversation with the decedent. It is not claimed that the plaintiff was present when the declarations were made which were sought to be elicited by the cross-examination. There was nothing in the testimony elicited from the witness on his direct examination to afford even so much as an excuse for eliciting from him on his cross-examination self-serving declarations of the decedent.

3. The question asked Dr. Sheahan on cross-examination as to whether or not the decedent treated plaintiff as a paid servant called for a mere conclusion, and the objection thereto was properly sustained for this reason, if for no other.

4. Mrs. Lesser, proprietor of the Roselle Hotel, where decedent was a guest for a number of years, was asked by plaintiffs counsel: "How frequently did you see Mrs. Zimmermann's daughters call on her at the hotel?" The question was objected to by defendant's counsel; the objection was overruled by the court; and the witness answered: "I saw Mrs. Young twice and the other daughter once." Defendant's counsel insists that the number of times that the daughters visited their mother was wholly immaterial, and had no bearing on the issue as to whether or not the plaintiff rendered the services sued for or had been paid therefor. Previous to the admission of this testimony, the plaintiff had testified in her own behalf, and the defendant's counsel had cross-examined her at length with much particularity concerning the number of times that the daughters visited the mother over the period of her 18 years' service to the decedent. The daughters were produced as witnesses on behalf of the defendant, and on direct examination by defendant's counsel testified in great detail concerning their visits to their mother during the period of the plaintiff's service. It is obvious that at the trial the defendant's ...