Wells v. Hobbs

• Decision Date: 04 November 1909
• Citation: 122 S.W. 451
• Parties: WELLS v. HOBBS.
• Court: Texas Court of Appeals

122 S.W. 451

WELLS v. HOBBS.

Court of Civil Appeals of Texas.

November 4, 1909.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by John P. Hobbs against G. W. Wells, executor of James M. Braden, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee was the plaintiff below. In his petition he alleged that appellant's testator, James M. Braden, deceased, in his lifetime, being old, infirm, almost helpless, and alone, undertook and agreed if he, appellee, and his wife, would move to his, Braden's, home, and care for him and for his property during the remainder of his life, to pay them well for so doing; that, relying upon such undertaking, he moved with his wife to Braden's home, and for 36 months thereafterwards remained there, caring for said Braden and managing his property; that during said 36 months he looked after Braden's farms and stock, collected rents due him, and generally superintended his entire business, and that during the same period his wife "attended to all the household duties, cooked, washed, and kept house for said Braden"; that at the expiration of said 36 months, to wit, on December 28, 1905, said Braden "discharged plaintiff and his wife from aforesaid employment," and they did not thereafterwards live with him; that the services specified performed by him and his wife for Braden reasonably were worth $50 per month, or, for the 36 months, $1,800; that said Braden died about November 15, 1906; and that after his death and after appellant had qualified as executor of his will he presented to appellant as such executor "his account for the sum of $1,800, duly verified, * * * which account was by said executor examined, rejected; he indorsing his rejection thereof on same." Appellee further alleged in his said petition that a time was not agreed upon as to when Braden was to pay for the services specified, but that "it was understood that, if it was not paid before, they would be fully compensated by said Braden in his will, but that in said will no provision whatever was made for same"; and he further alleged that "the amount due him under said contract became due and payable upon the breach thereof by the decedent, James M. Braden, to wit, on the 28th day of December, 1905." Appellant answered the petition by a general denial, and specially set up certain matters which need not be here stated.

The trial was before a jury. Over appellant's objection thereto, on the ground that same was a statement of transactions by and between appellee and his wife on one side and Braden on the other, about which he had not called her to testify, the court permitted Mrs. Hobbs to testify as follows: "I rendered services to Mr. Braden during the time we lived with him by milking, cooking, washing, and keeping house in general. I would help shuck corn sometimes and carry in wood. I washed Uncle Jimmie Braden's clothes, and washed for my family. His clothes were in very bad condition, as he was feeble and very nervous, and could not control himself very well. I washed his underclothes when he could not control his bowels. I performed the services above enumerated for three years. My husband would go with Uncle Jimmie, take him every place he wanted to go, and waited on him all over the place—that is, in feeding and tending to all of the stock and all outside work, everything. He did all the outside work that was done about the place." Over appellant's objection thereto on like ground, the court permitted appellee to testify as follows: "I done a good deal while I lived there. I could tell a heap of it. I hauled wood, cut wood. I fed cattle. I fed mules, collected rents, harnessed the old man's buggy, and carried him almost every place that there was anything to see to. I went with him. I attended to putting up hay. There was about 500 or 600 acres of meadow. I superintended the putting up of that hay while I was there. I have never received one cent in compensation for what I done while living on the Braden place." And further to testify as follows: "When I moved to Mr. Braden's place, I took there with me 300 bushels of corn, 1000 pounds of pork, some sugar and coffee. The corn was put into Mr. Braden's crib and fed out to my horses and his. The other supplies I carried there was cooked and eaten there. Supplies were furnished by me while I lived there. I bought them uptown at the grocer's. I could not state what proportion of the supplies used on the place was furnished by me." Appellant duly excepted to the action of the court in admitting as evidence the testimony quoted above. The trial was before a jury, and the appeal is from a judgment in favor of appellee for the sum of $471.40, interest and costs.

G. W. Wells and Allen & Dohoney, for appellant. J. S. Patrick and W. F. Moore, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellant's first, second, and sixth assignments of error are predicated upon the action of the court in admitting as evidence the testimony of appellee and his wife quoted in the foregoing statement. If the testimony of Mrs. Hobbs referred to should have been excluded had she by name been a party to the suit, the fact that she was not such a party would not be a reason for overruling the objection to it. The recovery sought was on behalf of the community estate between herself and her husband, and therefore she was a real party to the suit. That the wife in such a suit cannot, unless called to do so by the opposite party, testify to transactions had by her or by her husband with the decedent, is not an open question in this state. It is settled that she cannot testify as to such transactions. Simpson v. Brotherton, 62 Tex. 170; Anglin v. Barlow (Tex. Civ. App.) 45 S. W. 827; Paddock v. Lewis, 13 Tex. Civ. App. 265, 35 S. W. 320; Hedges v. Williams, 26 Tex. Civ. App. 551, 64 S. W. 77. Her testimony therefore is to be treated as that of a party to the suit, and its admissibility must be determined with reference to the rules applicable to the testimony of appellee, her husband. The statute declares that "in actions by or against executors * * * in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with, or statement by the testator * * * unless called to testify thereto by the opposite party." 1 Sayles' Ann. Civ. St. 1897, art. 2302. Was the testimony of appellee or that of his wife as quoted as to a transaction or transactions by either of them with Braden? We think it must be answered that portions of the testimony of each clearly were as to such transactions. "My husband," Mrs. Hobbs testified, "would go with Uncle Jimmie (Braden), take him every place he wanted to go, and waited on him all over the place—that is, in feeding and tending to all of the stock and all outside work, everything." Going with Braden, taking him from place to place and waiting on him, when sought to be made the basis of a recovery of compensation therefor, certainly were "transactions with" Braden. So, as clearly, was carrying him "most every place that there was anything to see to," as testified to by appellee, a transaction by him with Braden. Garwood v. Schlichenmaier, 25 Tex. Civ. App. 176, 60 S. W. 574; Williams v. Walden, 82 Ark. 136, 100 S. W. 900: Abbott v. Stiff (Tex. Civ. App.) 81 S. W. 563; Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640. And, while not so well satisfied about it, we think appellee's testimony that groceries purchased by him were used by Braden also was within the inhibition of the statute. The remainder of the testimony of appellee and his wife admitted as evidence over appellant's objection we think was not inadmissible on the ground stated. It was as to what the witnesses, respectively, did, and not as to "transactions with" the decedent. Potter v. Wheat, 53 Tex. 408. The testimony of Mrs. Hobbs as quoted having been objected to in its entirety, and portions of same being admissible and other portions inadmissible, did the court err in overruling the objection thereto and in admitting the testimony as evidence? We think not. The rule seems to be that "if the exception goes to the whole of the testimony complained of, and a part is admissible, the objection to the evidence will not be considered." Dolan v. Meehan (Tex. Civ. App.) 80 S. W. 101; Railway Co. v. Frazier (Tex. Civ. App.) 87 S. W. 400; Railway Co. v. Cuneo (Tex. Civ. App.) 108 S. W. 718; Wandelohr v. Bank (Tex. Civ. App.) 106 S. W. 416; Tuttle v. Moody, 100 Tex. 240, 97 S. W. 1037; Rhodes-Haverty Furniture Co. v. Henry (Tex. Civ. App.) 67 S. W. 341; Railway Co. v. Hall, 31 Tex. Civ. App. 464, 72 S. W. 1053; Moore v. Bank, 38 U. S. 302, 10 L. Ed. 173. For a like reason—that is, because a portion of it was admissible—the court did not err in overruling appellant's objection to the testimony of appellee quoted in said statement. The assignments specified therefore must be overruled.

One Crow and his son having testified to a conversation they asserted they had had with appellee, in the course of which appellee made certain statements tending to show the terms of the contract between himself and Braden and a compliance by the latter with his obligations thereunder, appellee, after testifying that he had had no such conversations with the Crows as the one recounted by them, over appellant's objection, was permitted to further testify as to other and different statements which he asserted he had made to the Crows in a conversation between himself and them. The grounds of appellant's objection were that the conversation testified to by appellee was another and different one from that testified to by the Crows, was self-serving, and within the inhibition of the statute above referred to, because it detailed transactions by appellee with the decedent, Braden, and as well statements by him in regard to such transactions. If the conversation...