Weese v. Yokum et al.

• Decision Date: 12 November 1907
• Citation: 62 W.Va. 550
• Court: West Virginia Supreme Court
• Parties: Weese v. Yokum et al.

62 W.Va. 550

Weese

v.Yokum et al.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1907.

Decided November 12, 1907.

1. Witnesses -Competency Transaction with Decedent.

A father who has emancipated his infant daughter is not thereafter by section 23, chapter 130, Code, disqualified, in a suit by her against the estate of a decedent for the value of services rendered the latter in his life time, to give evidence on her behalf of a personal transaction or communication between witness and decedent. (p. 551)

2. Parent and Child Emancipation Evidence.

Such emancipation may be established by oral or written evidence; or it may be proved by circumstantial evidence; or it may be implied. (p. 552.)

3. Same Emancipation Irrevocable.

An agreement for emancipation between a father and his infant child is irrevocable. (p. 552.)

4. Witnesses Competency Transactions with Decedent.

A claim for wages subsequently accruing to a child thus emancipated can in no legal sense be said to be derived from, through or under the parent by assignment or otherwise, so as to disqualify the latter, under section 23, chapter 130, Code, from giving evidence on behalf of the child, in an action to recover such wages, as to a personal transaction or communication between the witness and the decedent for whom services were rendered. (p. 552.)

Error to Circuit Court, Randolph County.

Action by Myrtle M. Weese, by her next friend, against H. Yokum, administrator, and another. Judgment for plaintiff, and defendant brings error.

Affirmed.

Jared L. Wamsley, for plaintiffs in error.

C. H. Scott, for defendant in error.

Miller, President:

Myrtle M. Weese, a minor daughter of Henry Weese, suing by next friend, brought an action in assumpsit in the circuit court against the administrator and administratrix of the personal estate of Geo. W. Leonard, deceased, and recovered judgment for $725. The declaration is in two counts the first a quantum meruit count for work and services; the second, upon a contract alleged to have been made with decedent in May, 1895, for services and compensation at $2.50 per week, under which the plaintiff alleges she had rendered services thereafter for seven years, until the death of said decedent, and had received no part of the stipulated compensation. Beginning with May, 1896, and annually thereafter up to and including March, 1903, the bill of particulars filed charged the decedent's estate with the sums then due, at the rate of $2.50 per week, with interest, aggregating $1,283.30. There was a demurrer to the declaration and each count thereof; but the action of the court in overruling the same is not assigned as error, and, under our rules, we must treat it as waived. The errors assigned and argued by plaintiff in error are the judgment overruling the motion to set aside the verdict and grant a new trial; that the verdict was excessive; and that the court improperly permitted Henry Weese, a witness for the plaintiff, to answer two certain questions covered by bills of exception. All other errors will be treated as waived.

It is proper we should first dispose of the questions relating to the testimony of Henry Weese. As they mainly relate to his qualification as a witness, they may be considered together. The first question was:" State whether you as the father of this girl agreed that she should go there(the residence of Geo. W. Leonard) to live and whatever she would earn would be her own;" to which, over the objection of the defendants, he answered: 44 Yes, sir." The second was:" State whether you agreed with Mr. Geo. W. Leonard, the deceased, that you would demand or expect him to pay you anything that might be earned by your daughter;" and, over like objection, he answered:" No, sir, he was not to pay me." The objection to these questions is based upon section 23, chapter 130, Code, providing that "no party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased." The only ground of objection argued here is that the witness is interested in the result of this action. The only other ground based on the statute which could be assigned is that the plaintiff derived some interest by assignment or otherwise from him. With respect to the first question, we do not think it necessarily, or by any fair implication, relates to any personal transaction or communication with the deceased. While the second does have such relation, yet the testimony given was so far immaterial to any real issue in the case as not to render its admission reversible error. The testimony covered by both these questions and answers was offered, not to prove a contract between the witness and the deceased for the services of the plaintiff, but to show an emancipation by him of his daughter, her freedom to contract with the deceased for the services rendered, and her right to maintain this action. The fact of emancipation was established by the witness' answer to the first question. Such emancipation may be established by oral or written evidence; or it may be proved by circumstantial evidence; or it may be implied. Trapnell V. Conklyn, 37 W. Va. 242, 254. The character of other evidence in the case covering this subject was such that, without this testimony of Henry Weese, the jury would necessarily imply an emancipation; and it was not necessary, in order to entitle the plaintiff to recover, to show a contract with the deceased for, or knowledge by him of, emancipation. Corey v. Corey, 31 Am. Dec. 117; Whiting v. Earle, 15 Am. Dec. 207. And it is held that an agreement between a father and his infant child that the latter may have his earnings is irrevocable. More v. Welton, 16 Am. Dec. 73, and note.

But was the witness disqualified to give this evidence, even if material, on behalf of the plaintiff, by reason of any derivative interest acquired by the plaintiff from him by...