Malone v. Harlin

*105 BAILEY, J. — Plaintiff filed a demand against the estate of John T. Holmes, deceased, in the probate court of Howell county, for the sum of $6202. The demand was divided into four items, the first of which was a claim for nursing deceased during a period of three years and twenty-two days at $5 per day amounting to $5895; the second item for laundry work over a period of 130 weeks at $1.50 per week; amounting to- $195; the third item for ‘ ‘ cleaning up ’ ’ after the death of the said John T. Holmes amounting to $100 and a further item for board of one Fitz Higginbotham and family during the last illness of the deceased for a period of three days, amounting to $12, all of which totals the amount first above stated: The cause was first tried in the probate court and thereafter, on appeal went to the circuit court of Howell county where a verdict was rendered in favor of plaintiff separately oh. three of the above items as follows: $2755 on the first item for nursing; $195 on the second item for laundry work; $50 on the third item for cleaning the house; and no verdict was rendered on the fourth item amounting to $12. The total verdict and judgment was $3000, from which defendant has appealed to this court. The high points of error raised by appellant in this ease are: (1). Incompetency of Jake Malone and wife as witnesses against the defendant administrator. (2). The giving and refusal of Instructions. (3). Improper remarks of counsel in the closing argument *106 at the trial. (4). Excessive verdict. (5). Failure of verdict to respond to all the issues raised in the demand filed. We shall first confine ourselves to the question of the competency of Jake Malone, the claimant, to testify in this case. When Jake Malone was offered as a witness by plaintiff an objection was sustained to his testifying because the other party to the alleged contract was dead. The witness was, thereafter, permitted to testify as to what occurred after the death of Holmes relative to cleaning up the house. During the course of his examination, he made some statements relative to matters that occurred prior to the death of Holmes. Among other things witness stated that "After the death of Holmes we cleaned up, well it was just awful where the old man was. We would get him out of bed, he couldn’t control himself. As he would come out of bed, I would have him in my arms lots of times. The old man was in bad shape.” Such evidence was no doubt improper coming from the claimant, but as no proper objection was made, we are unable to consider it here. Mr. Malone, the claimant, was competent under our statute to testify as to what occurred after the appointment of the administrator. [Sec. 5410, R. S. 1919.] There is evidence that the administrator had been appointed prior to the occurrence of the facts to which this witness testified, and in fact, the conversation which witness relates was had with the administrator. We rule against defendant, in so far as witness Jake Malone is concerned. It is next urged that Mrs. Jake Malone was incompetent as a witness. When she was offered counsel for defendant made the following objection: "We object to this witness testifying, because she is the wife of the plaintiff and an interested party, and was a party to claimed cause of action; also agent for her husband, and other party, Holmes, is dead, and she herself filed a claim against the estate at one time, and is directly interested in this suit, and she is incompetent to testify against this estate.” There can be no question that the fact that this witness was the wife of the claimant would not disqualify her as a witness. Section 5415, Revised Statutes, 1919, as amended by the Laws of 1921 at page 392, provides that: "No married women shall be disqualified as a witness in any civil suit prosecuted in the name or against her husband, whether joined or not with the husband as a party.” The Act of 1921 changed the rule as to the wife’s competency. Prior to the passage of the Act referred to, the wife was only competent in certain particular cases, among them being matters of business when the transaction was had and conducted by the wife as agent of her husband. That being true, defendant’s objection to her competency on the ground that she was agent for her husband, would be untenable even prior to the enactment of the 1921 statute. *107 Defendant further objected to the competency of this witness on the theory that she was directly interested in the suit. At the time this objection was made the witness had not testified and the court had before it for consideration only the amended petition or claim in which Mrs. Jake Malone did not appear as a party, and there was nothing to indicate she had any interest whatever in the claim. Under such circumstances the court promptly overruled the objection. The testimony of Mrs. Jake Malone later indicated that she did have an interest in this claim. But it was the duty of defendant to object to her testimony after such showing was made and to move that all her testimony be excluded. Failing in this, we cannot attribute error to the trial court for receiving this testimony before any showing was made that this witness had an interest in the claim. Evidence that is competent at the time the objection is made, may later become incompetent and in that event counsel should, ask that it be stricken out. [Young v. Thrasher, 61 Mo. App. 413; Vette v. Leonori, 42 Mo. App. 217], The instruction to which defendant raises objection is No. 4, given for plaintiff, in which the jury is told that as to plaintiff’s demand for cleaning house, such work, if done, was occasioned by deceased’s condition before his death, and that if such cleaning was absolutely necessary and that plaintiff expected or ought to have expected that he would be paid therefor, then the jury would be authorized to find that there was an implied promise to pay for the reasonable value of such work, even though there was no express contract or agreement to pay therefor. Appellant contends that this instruction is erroneous, because it does not require the jury to find: (1) That the work was done by plaintiff. (2) That he intended to charge for same. (3). That he had not been paid for it. The case of Burt v. Gabbert, 174 Mo. App. 521, is cited in support of these contentions. We do not believe the ease cited up-holds appellant’s position relative to this instruction. In the Burt case an instruction was given that if the jury found from the evidence that deceased pastured and boarded his horse with plaintiff, then plaintiff was entitled to recover such sum as the jury thinks they are entitled to, not to exceed a certain amount. The instruction was held to be erroneous in relation to a claim for pasturing and boarding the horse of deceased, because the jury was required only to find the one undisputed fact, that plaintiff had rendered such services. In that ease, the services were rendered by the child and son-in-law of deceased, and the court properly held that the jury should be required to find that both the deceased and the claimant recognized the contract to pay because a contract either express or implied was a necessary foundation for recovery. Instruction Number 4, in this ease, while not clear as it might be, covered a situation which developed after the death of Mr. Holmes and *108 we do not believe it contained reversible error, especially in view of the fact that defendant’s instruction No. 2 specifically pointed out all the necessary elements to be proven by plaintiff before he was entitled to recover for such services. There was evidence that plaintiff received payment for board of deceased during the time he stayed in plaintiff’s home and that settlements for room and board was made from time to time. It is claimed that this amounted to a settlement of all accounts. On that point defendant asked the following instruction: “The-court instructs the jury that if you believe and find from the evidence that the plaintiff and the deceased, John T. Holmes, had settlements between themselves from time to time, during- his lifetime; then, in that event, the law will presume that all accounts were fully settled between them, up to the time of such settlements; and the plaintiff could not now maintain his action for any item of his account for services claimed to have been rendered before such settlement. ’ ’ This instruction was by the court refused, which is assigned as error. The only evidence of any settlement was that Holmes paid plaintiff’s wife for his board and room from time to time. The contract relied on by claimant was based on the proposition that if he would take care of deceased and nurse him he would be paid for his services more than he could malee working- on the railroad. There is no pretense that there was ever an account stated and no evidence whatever to support such a contention. These services were rendered up to the very time of the death of John T. Holmes, under a promise that plaintiff would be rewarded therefor. In the absence of proof of an account stated between the parties, we do not believe there is any presumption that the particular items of account for services rendered were included in the payments which deceased made for his board and lodging. During the argument counsel for plaintiff made the following statement : ‘ ‘ There is just as much reason for you gentlemen of the jury to believe that old man Holmes made a will and gave Jake Malone liberal payment for his services in that will, and that ~W. T. Harlin had possession of such will and refuses to produce it for Probate, as to believe that Malone had access to any cancelled checks and failed to produce them, intimated in argument of counsel for defendant,” to which remark of said counsel, defendant objected for the reason there was no evidence whatever before the jury that deceased, Holmes, ever made a will in his lifetime and no evidence that defendant, Harlin, had same in his possession, and that said remarks were improper and prejudicial to defendant. Defendant’s objection was overruled and defendant asked that the remarks of plaintiff’s counsel be withdrawn from the consideration of the jury and the counsel rebuked for making such remarks, which request was by the court denied and exceptions duly saved. The record shows the remarks *109 referred to were permitted in reply to argument of counsel for defendant. Such matters are largely within the discretion of the judge who hears the argument, who is in a better position to determine whether such arguments were improper and whether it was provoked by the opposing counsel. [Wilson v. Seed Co., 243 S. W. 394.] It is our opinion the jury could not have been prejudiced by the remarks of counsel made by way of comparison and in illustration and no reversible error was committed by the trial judge in this respect. It is next contended that the verdict is excessive. On this point there is evidence tending to prove the deceased, John T. Holmes, was an old bachelor and lived with Jake Malone in a house which deceased owned and which Jake Malone occupied as a tenant, from about February 19, 1922, until the death of the said John T. Holmes; that deceased had bronchial pneumonia; that he was troubled with constipation and had no control over his bowels and that on account of his condition it was often necessary to change his bed, and that his- condition was such that he required a great deal of care under very disagreeable and loathsome circumstances. Some of the witnesses testified that he was a hermaphrodite. He had a sore leg, the nature of which was not made clear, but which caused a severe swelling and it had to be “dressed” often. Holmes was about sixty years of age at the time of his death; by his thrift, he had accumulated considerable money. After he came to live with the Malone’s, his health was bad and he depended almost entirely on Jake Malone for his nursing. He paid regularly for his room and board. There is some evidence the nursing which Malone gave was for only a very short period of the time for which plaintiff claims he rendered the services, but there was other evidence that the services were continuous over the greater part of the three-year period. It is not our province to weigh the evidence, but from standpoint of the evidence offered in behalf of plaintiff we do not find the verdict excessive, especially in view of the character of the services rendered. Appellant further contends that the verdict does not respond to the issues raised. Our attention is called to- the fact that there is no verdict relative to the twelve dollars claimed for the board of Fitz Higginbotham and family, which was one of the items for which claim is made. If there is any error on this point appellant cannot take advantage thereof, because it was not called to the attention of the trial judge in the motion for new trial. Plaintiff was permitted to recover in this case for services for doing laundry work. On this item the verdict was for the sum of $195. There is no evidence whatever that plaintiff did any laundry work for deceased; on the contrary, all the evidence indicates the work of this *110 character was performed by Mrs. Malone, wife of plaintiff. Under the married woman’s act the wife is the same as feme sole in managing her business affairs and is entitled to the wages for her separate labor. [Secs. 7323 and 7328, R. S. 1919; Ingals v. Ferguson, 138 Mo. 358, 39 S. W. 801.] There is nothing in this case to indicate that plaintiff was entitled to pay for these services by assignment or otherwise, and’ we believe the judgment is erroneous in so far as this item of $195 is concerned., We, therefore, rule that the judgment of the trial court be confirmed upon condition that plaintiff file a remittitur in the sum of $195 within fifteen days from the time of filing of this opinion. Otherwise, the cause will be reversed and remanded. Cox, P. J., and' Bradley, J., concur.