Sprague v. Sea, Administrator
| Decision Date | 14 November 1899 |
| Citation | 53 S.W. 1074,152 Mo. 327 |
| Parties | Sprague v. Sea, Administrator, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John H. Slover, Judge.
Affirmed.
Robert T. Railey and John A. Sea for appellant.
(1) This being a suit against an administrator, respondent was wholly incompetent to testify on any matter occurring prior to grant of letters of administration. The court erred in permitting Miss Sprague to testify in the case. R. S. 1889 sec. 8918; Leeper v. Taylor, 111 Mo. 312; Nowack v. Berger, 133 Mo. 24. (a) Having a legal, direct and certain interest in the suit, she was disqualified. Banking House v. Rood, 132 Mo. 256. (2) The testimony of Mrs. Minnie Taylor as to value of service was purely an opinion on ordinary, every day matters since she nowhere states that she knew the value of such service. Facts should have been told and value of service left to jury, they forming the opinion, it nowhere appearing that the jurors were not capable to draw correct conclusions from facts proved. Benjamin v. Street Ry., 133 Mo. 274. (3) Instruction 5 is especially vicious, as it misstates the admission made in appellant's answer. An instruction should not assume a theory as admitted by the pleadings unless it is so admitted, and its hypothesis should be within the limits of the pleading. The essential fact (that the board and clothing was given as a compensation or payment) embraced in its hypothesis was not within the limits of the pleading. For this fault it should be condemned. Halpin Mfg. Co. v. School District, 54 Mo.App. 371; Lenox v. Harrison, 88 Mo. 495; Merritt v. Poulter, 96 Mo. 240; Bender v. Dongan, 99 Mo. 130; Crews v Lackland, 67 Mo. 621. (a) It assumes the admission of facts which were put in issue by the pleading. By it the precise and especial ground of the defense was in a great measure withdrawn from the consideration of the jury, thrown in the background and apparently negatived altogether. It assumes that the board and clothing were given as a compensation on an express or implied contract for work and labor. Thompson v. Botts, 8 Mo. 710; Stone v. Hunt, 94 Mo. 475; State ex rel. v. Mason, 96 Mo. 559; State v. Wheeler, 79 Mo. 366; Robertson v. Dane, 100 Mo. 273. (b) It does not fairly submit the case presented by the pleading. Brown v. Railroad, 101 Mo. 484; Willmet v. Railroad, 106 Mo. 555; Railroad v. Railroad, 118 Mo. 599; Matson v. Frazier, 48 Mo.App. 302. (c) It also withdraws from the jury an issue of fact. Turner v. Loler, 34 Mo. 461; Sawyer v. Railroad, 37 Mo. 240; State ex rel. v. Mason, 96 Mo. 559; Robertson v. Dane, 100 Mo. 273.
Warner, Dean & McLeod for respondent.
(1) The defendant at this time can not urge that plaintiff was incompetent as a witness, for the reason that no objection whatever was taken to her testifying at the time. The defendant, moreover, cross-examined the plaintiff. By not objecting to the incompetency of a witness it is waived. Foster v. Railroad, 115 Mo. 183; Burdoin v. Trenton, 116 Mo. 373; Kash v. Coleman, 145 Mo. 649; In re Estate of Soulard, 141 Mo. 642; Borgess Inv. Co. v. Vette, 142 Mo. 569; Farber v. Railroad, 139 Mo. 284. (2) The evidence given by plaintiff herself, however, was not incompetent under section 8918, Revised Statutes 1889. This evidence simply tended to prove certain physical facts, the existence of which was independent of any and all contracts between the parties. These facts were not peculiarly within the knowledge of plaintiff, but are testified to by several other witnesses for plaintiff, and are uncontradicted. The witness was not allowed by the court to testify to any transactions between herself and deceased. Her "competency depends upon the character of the evidence offered." In regard to independent facts she was competent. Banking House v. Rood, 132 Mo. 263; Bank v. Payne, 111 Mo. 298; Bates v. Forcht, 89 Mo. 121; Kuhn v. Ins. Co., 71 Mo.App. 309; Whaley v. Peak, 49 Mo. 82. (3) An instruction similar to instruction number 1, given on behalf of plaintiff, was approved in the cases of Reando v. Misplay, 90 Mo. 256, and Koch v. Hebel, 32 Mo.App. 111. (4) There is nowhere in the record any evidence whatever to support instruction number 5, asked by defendant. It was therefore properly refused by the court. Stone v. Hunt, 114 Mo. 74; State ex rel. v. Hope, 102 Mo. 427; McKeon v. Citizens Ry., 42 Mo. 86; Sherrell v. Murray, 43 Mo.App. 236; Regan v. Railroad, 144 Mo. 636.
By this action plaintiff seeks to recover of the estate of Harvey M. Vaile compensation for her services rendered him in his lifetime as his housekeeper, and in attending to his other affairs from February, 1883, to June 4, 1894.
The petition contains two counts. The first is the common court of quantum meruit, and the second relies upon an express contract for said services.
Defendant for answer to the first count of plaintiff's petition admits that he is the administrator of the estate of said Harvey M. Vaile, deceased, as stated in said petition. Admits that said Harvey M. Vaile furnished the plaintiff with her board and clothing from the fourteenth day of February, 1883, to the fourth day of June, 1894. Denies that said Harvey M. Vaile became indebted to the plaintiff in the sum of $ 5,608.30, or in any sum whatever on account of services rendered by her as a general housekeeper, or in attending to his business in or about his home in Independence, Missouri, or on account of any services of any kind whatever rendered by her for him. Avers the fact that said Olivia Sprague is a cousin of said Harvey M. Vaile; that she lived with the family of the said Harvey M. Vaile during the time mentioned in said first count of said petition as a member of his family and that whatever services she performed, if any there were, were rendered gratuitously as such member of his family and without any expectation on the part of the plaintiff at the time, of making a charge thereof, or on the part of said H. M. Vaile of paying anything therefor; that the said H. M. Vaile considered plaintiff as a member of his family and furnished her with said clothing and board as such, and as such, by his last will and testament, bequeathed to her, the said plaintiff, an annuity for and during her natural life of five hundred dollars, and provided by his said will that said sum of five hundred dollars should be paid to her each year out of his said estate. Defendant denies each and every allegation in said first count of plaintiff's petition not hereinbefore expressly admitted, and asks that plaintiff take nothing by her said first count, and that defendant have and recover his costs herein expended.
The second defense is the same to the second count.
The reply was a general denial.
The cause was tried to a jury in the circuit court of Jackson county and resulted in a verdict for plaintiff for $ 5,802.86. Defendant appeals.
It appears that Harvey M. Vaile for many years previous to his death lived near Independence, in Jackson county. His residence was one of the handsomest and largest in said county. The grounds were extensive and ornamented with the choicest shrubbery and flowers. He was also an extensive breeder of pedigreed cattle. He traveled much, and during his absence Miss Sprague, the plaintiff, superintended his business, as well as his household affairs. The house contained about twenty rooms. Besides herself only two servants were employed to run it. About fifteen workmen were usually employed on the premises and took their meals there. It is a conceded fact that during all the time for which she sues, plaintiff was the housekeeper. Mr. Vaile in his last will recites that "Miss Olivia Sprague has looked after my household affairs for many years." Plaintiff's evidence tended to prove that her services were well worth $ 500 a year.
The theory of the defense, as it is gathered from the answer and instructions asked by the defendants, is that Miss Sprague being a relative of the decedent did not expect compensation for her services and did not intend to charge therefor when she rendered them; that the decedent promptly paid all his bills and it was a fair presumption that one so punctual in meeting his obligations would not have let this matter of plaintiff's wages run for ten years; that the testator intended to and did provide for plaintiff by a provision in his will, and that the board and clothing furnished and this provision in his will were a full satisfaction for the services rendered.
Various errors are assigned in two briefs by the defendant.
I. The demurrer to the evidence was properly overruled.
It is elementary law that if I employ a person to do business for me or perform any work the law implies that I undertook or contracted to pay him as much as his labor is reasonably worth, and in an action like this on the common count of quantum meruit for work and labor done and performed at the instance and request of the defendant's intestate, proof that the services were performed and that he accepted the work makes a prima facie case. It was abundantly established that plaintiff with the knowledge and approval of Mr. Vaile, looked after his household and other business affairs during all the time for which she sues, and that her labors were reasonably worth $ 500 a year. Granting that there was no evidence of an express contract, the law implies an agreement on the part of deceased to pay the reasonable value of her services.
Certainly the mere fact that she was a second cousin in and of itself raised no presumption that she was rendering her services gratuitously, but it was a question of fact properly submitted to the jury whether or...
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