Sheldon v. Thornburg

• Decision Date: 11 January 1912
• Citation: 153 Iowa 622,133 N.W. 1076
• Parties: SHELDON v. THORNBURG.
• Court: Iowa Supreme Court

153 Iowa 622

133 N.W. 1076

SHELDON

v.THORNBURG.

Supreme Court of Iowa.

Jan. 11, 1912.

Appeal from District Court, Dallas County; J. H. Applegate, Judge.

Proceedings for the establishment of a claim made by plaintiff against the estate of Elizabeth E. Warren. Verdict for plaintiff, and defendant appeals. The material facts will be found sufficiently stated in the opinion. Reversed.H. A. Hoyt and H. G. Giddings, for appellant.

D. H. Miller, for appellee.

WEAVER, J.

The plaintiff is a sister of the deceased, Mrs. Warren. In December, 1909, Mrs. Warren being ill, plaintiff came to her sister's house, and cared for her, or assisted in caring for her until her death in July, 1910. Thereafter an administrator having been appointed for the estate of the deceased, plaintiff filed a claim for the services so rendered, itemizing the same as 30 weeks labor in housekeeping and nursing at $25 per week, making an aggregate of $750. She also presented and filed another claim upon two promissory notes signed by the deceased, with her husband, W. E. Warren, aggregating the further sum of $112. Allowance of these claims was refused by the administrator, and the issue was tried to a jury, resulting in a verdict for plaintiff for $700. The evidence tends to show that for many years plaintiff had frequently visited in her sister's home; such visits on one or more occasions extending over a period of several months. During such visits she was treated as a visitor or member of the family, and assisted in and about the housework, paying no board and receiving no compensation for her services. On December 21, 1909, plaintiff then being in Keokuk, Iowa, her usual place of residence, received from Mrs. Warren a letter reading as follows: “Perry, Iowa, December 21. Dear Sister: I am very sick. Will you come? I will pay your expenses. Do not delay. [Signed] Lib.” It was in response to this summons that plaintiff went to Mrs. Warren's home and entered upon the service for which she claims payment. This general statement is sufficient to indicate the point and bearing of the several assignments of error upon which a new trial is sought by the appellant.

1. The plaintiff was a witness in her own behalf, and, after stating that her sister and sister's husband and herself were the only persons living in the house during the period of her alleged services, she was permitted over defendant's objection to testify as follows: “Q. I will ask you, Mrs. Sheldon, whether while you were there you had any conversation with Mrs. Warren about the services you were rendering in her home at that time, and about any compensation that you would receive for it? Mr. Giddings: Defendant objects as incompetent and the witness incompetent to testify. Court: I will let her answer it by yes or no. A. Yes, sir; we had an understanding. We had a talk regarding it. Mr. Giddings: Defendant asks to strike the answer of the witness from the record for the reasons urged in the objection. Court: I will let her answer stand as to that. (Exception saved.) Q. You may state Mrs. Sheldon what, if any, services Mr. Warren rendered there while you were about the house in caring for Mrs. Warren or otherwise. Mr. Giddings: The same objection, and because they cannot by process of elimination get at an incompetent fact by an incompetent witness. (Overruled, exception saved.) A. Mr. Warren did nothing in regard to the taking care of Mrs. Warren. The Court: Just what he did if anything. (Exception saved.) Q. Leaving out what you did? A. He did occasionally bring in some wood to put in the stove, and he would take up the ashes and carry them out. He would often take the slop pail and carry it away and empty it. I don't know of his doing anything else. Q. What else, if anything, did he do in the way of administering medicines to her? (The same objection. Overruled. Exception saved.) A. Nothing.” Again she was permitted to testify that during Mrs. Warren's sickness and in her presence and hearing she, plaintiff, had some words with Mrs. Warren's husband, in which she told him to pay what he owed her, and she would go home; and that to his inquiry how much he owed her she responded, “Twenty-five dollars a week.” To the admission of the evidence to which we have referred proper exceptions were preserved.

[1] We are quite clear that the testimony first quoted was erroneously admitted. As claimant against the estate of the deceased, plaintiff was not a competent witness concerning any conversation or personal transaction between herself and her sister, yet she was allowed to tell the jury that, after coming to the Warren home in response to the letter above mentioned, she had a conversation or understanding with deceased concerning the service she was rendering there, and the compensation she was to receive for it. If this did not amount to a conversation or transaction, it will not be easy to find its proper classification. True, she did not undertake to repeat the words employed, but she did that which may have been much more prejudicial to the defendant--she put her own construction on the unrevealed words and that, too, without fear of cross-examination, for defendant could not cross-examine concerning what was said between the sisters without surrendering his right to insist upon the incompetency of the witness to testify on that subject.

[2] A witness may not testify indirectly to that of which he is incompetent to testify directly. Watters v. McGreavy, 111 Iowa, 538, 82 N. W. 949. While the word “transaction,” as used in the statute, may not, perhaps, be open to any all-embracing definition universally applicable to all cases, it is perhaps sufficient for present purposes to say that anything said or done between the witness and deceased or any act or communication in which they both had any part, and of which both had knowledge and concerning which the deceased, if living, could speak in...