Brown v. Holman

*482 OTTO, J. This cause was in this court on a former appeal. [See Brown v. Holman, 238 S. W. 1065.] By the opinion rendered in that case the judgment was reversed and the cause remanded for a new trial because of error on the part of the trial court in refusing to admit in evidence a document designated and referred to therein and herein as plaintiff’s “Exhibit A.” The action is against the administrator of the estate of Isaac Brown, deceased, for compensation for services rendered by plaintiff, who was a son of the deceased, as manager and foreman of the farm of said deceased, and labor performed on said farm from September 13, 1885, to March 17, 1917, being thirty-one and one-half years, at $600 per year. A verdict was returned in favor of plaintiff in the sum of $9,000, and judgment therefor was accordingly entered. The administrator appeals. The facts, which are substantially the same as in the former trial, are amply set out in the former opinion of this court and a re-statement of them is deemed unnecessary. The opinion rendered by this court in the former appeal is decisive of every contention, which merits consideration, made by appellant at this time, excepting, however, the errors assigned in the giving and refusing of instructions, other than instructions in the nature of demurrers to the evidence. Instruction A for plaintiff reads as follows: “The court instructs the jury that if you believe and find from the greater weight of the evidence in this case that the claimant P. M. Brown between September 13, 1885, and March 17, 1917, rendered valuable services to his father, Isaac Brown, now deceased, in managing and doing manual labor on the farm of his said father in Randolph County, Missouri, and in taking care of the stock of *483 his father thereon, and that it was understood and agreed by and between said claimant and his said father that P. M. Brown was to receive pay for such services, and that said Isaac Brown was to pay him ‘herefor, then you will find for the said claimant, P. M. Bmwn, and allow him in your verdict such sum as you may believe and find from the evidence in this case to be the reasonable value of such services rendered by him during said time for which he has not been paid.” Appellant charges error in the giving of this instruction in that it fails to properly condition the right of the plaintiff to recover unless the agreement was made at the time of the rendering of the services; that it leaves that question open and permits the jury to make a finding in favor of the plaintiff although there was no understanding or agreement at the time of the rendering of said services that the plaintiff was to receive pay for the same, and that Isaac Brown was to pay him therefor; that it allowed the jury, or directed them to allow, such sum as they should find from the evidence in the case to be the reasonable value of the services rendered, for which plaintiff had not been paid; that it is confusing, and raises a question not in the pleadings or in the evidence. Instruction B for the plaintiff is in the following language: “The court instructs the jury that if you find and believe from the evidence that the plaintiff continued to reside on his father’s farm and lived in his father’s house as a member of his family on and after he became of age, the mere fact that the plaintiff worked on his father’s farm and rendered services thereon during the time alleged in his statement, does not entitle him to recover in this case, unless you find that there was an understanding or agreement between the plaintiff and his father, or that there are facts and circumstances in evidence from which you may and do reasonably infer an understanding or agreement, both that the plaintiff was to receive pay for such services on the one hand and that the father was to pay for the same on the other, and, it is not sufficient if you believe that the father’s intention was only to leave property at his death to the plaintiff.” Instruction C is as follows: “The court instructs the jury that by his complaint plaintiff sues for the reasonable value of services alleged and if, under the evidence, and other instructions, you find for the plaintiff, then by your verdict you should allow him such and only such amount as you may believe from the evidence represents the reasonable value of all services found by yon to have been performed by plaintiff ‘in managing and running farms, managing, taking care of live stock, doing-labor on said farms and in transacting business in connection with said farms and live stock,’ less the reasonable value of any compensa *484 tion or benefits, if any, that you believe tbe plaintiff received from the decedent, Isaac Brown, on account of such services.” The same objections as are raised against Instruction A are lodged against Instruction B, together with the further objection that there is no testimony'warranting the giving of that part of Instruction B which reads as follows: “It is not sufficient if you believe that the father’s intention was only to leave property at his death to the plaintiff. ’ ’ Like objection is made to Instruction C, as to which it is also claimed that it is inconsistent with Instruction A, especially as to what the jury should find, and that this instruction magnifies further the compensation or benefits that plaintiff may have received, with no testimony whatever on which to bottom the same. There is testimony in the record from which it is reasonably inferable that plaintiff received nothing as payment for his services other than his board and room. There is testimony to the effect that plaintiff, during his father’s lifetime, owned, or claimed, a mare and a horse, and that after his father’s death he claimed five head of horses, nine jennies, two cows, two calves, several articles of farm machinery, forty-two head of sheep, forty-two lambs, hay and corn and all grain not sold at the sale. This property, according to the evidence, was of the fair market value of $2,500. There was no testimony that this property had been received by plaintiff, from his father, or from his father’s estate, as payment, or part payment, for his services rendered. However, if the jury, under the instruction complained of, assumed the right to consider the value of said property as part payment of plaintiff’s claim, and did so consider it, no harm could have resulted to appellant thereby. The instructions hereinabove set out, in substance, correctly state the law applicable to the case. [Sprague v. Sea, 152 Mo. l. c. 335 et seq.; Wandling v. Broaddus, 265 S. W. l. c. 1005.] Therefore, the objections of learned counsel for appellant with respect to said instructions must be, and are hereby overruled. Instruction D given to the jury is as follows: “The court instructs the jury that the claimant, P. M. Brown, is incompetent to testify in his own favor, except as to such acts and contracts as have been done or made since the appointment of the administrator of the estate of Isaac Brown, deceased.” Appellant claims error in the giving of this instruction' on the ground that it is a comment on the disqualification of the claimant without any testimony being given raising the question of his competency, and that the instruction could only tend to confuse or mislead the jury to the defendant’s injury. *485 By statute, Section 5410, Revised Statutes 1919, a person is disqualified as a witness in actions where one of the original parties to the contract or cause of action in issue and on trial is dead. In Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, it was held that where by statute a wife is made incompetent as a witness, in an action by her husband to recover damages for alienating her affections, it is not improper for the court to charge the jury that no inference is to be drawn for or against either party from the fact that the wife has not testified. The instruction complained' of in that ease is as follows: “This being an action by a husband for the seduction of his wife, the wife is excluded from testifying, and is not a competent witness, and no inference is to be drawn for or against either party to this suit from the fact that the plaintiff’s wife has not testified.” Section 501 of the statutes of that state provided that the husband shall be a competent witness in a suit for the seduction of his wife, but she shall not be competent. While Instruction D does not, in so many words, charge that no unfavorable inferences are to be drawn from the fact that the plaintiff did not testify, that is its aim and purport, and, while we do not encourage the giving of such instruction in eases like the one at hand, we hold" that the lower court did not commit error in the giving thereof. As concluded in the former opinion in this cause, the evidence adduced justifies the inference that there was a mutual understanding or agreement between plaintiff and the deceased that plaintiff was to be paid for his services; and, the entire evidence being sufficient to submit to the jury the issue as to whether or not there was such an understanding or agreement, and finding no reversible error in the record, the judgment of the trial court is affirmed. It is so ordered. All concur, except Graves, J., absent.