Graham v. McKinney

147 Iowa 164 | Iowa | 1910

Ladd, J.

The claimant kept a boarding and rooming house at 326 East Eifth street in Des Moines. The evidence that deceased, who was not related to her, had occupied a room therein and boarded 'with her for three or four years prior to his death on/ November 17, 1907, was uncontradicted. Cummings testified that deceased had roomed there three and one-half years, and that for six months of this time he ate supper with him at claimant’s table. Mrs. Priest testified that he had boarded and roomed there three years, and her testimony was corroborated by that of the other witnesses.

i. Estates of decedents: claims: implied contract for compensation: evidence. I. The suggestion of appellee that the proof was that he had merely been seen at the place or at the table in a few instances or at certain times is not borne out by the record. Moreover, the record disclosed that he was frequently in ill health, and that claimant cared for him. Having furnished him hoard and a room and rendered services in his care, the law implied a promise on his part that he would pay the reasonable value thereof. Such value was shown, and a witness testified to a conversation in 1906, .and another in 1907, wherein deceased was said to have admitted that he had not paid claimant for his board and room, but expected to see that she was taken care of. Nevertheless, a verdict- was directed for the administrator. In such a case the facts justifying the implication of an agreement to pay must be well established and nothing left to conjecture. Bartholomew v. Adams, 143 Iowa, 354. This requirement was met, and, as the statute (section 3340, Code) expressly declares that “the burden of proving that a claim is Unpaid shall not be placed upon a party filing a claim against the estate,” a case was made for the jury.

evidence: tr^nssctions with a II. Claimant,, in the course of her examination, was asked, in substance, (1) whether he had roomed and boarded elsewhere than at her house; (2) what amount of board or care of him was required; and (3) whether any person other than herself had rendered him any services during his illness. Objection to each of these inquiries was interposed on the ground that the witness was incompetent, under section 4604 of the Code, prohibiting her from being “examined as a witness in regard to any personal transaction or communication between” herself and deceased. Objection to the first and third inquiries should have been overruled. Neither called for a personal transaction, though, had answers been in' the negative, it might have been inferred that he roomed and boarded, if at all, at plaintiff’s house, and that she might, have cared for him when sick, McElhenney v. Hendricks, 82 Iowa, 657; Campbell v. Collins, 133 Iowa, 152. In the last case, we said the statute was not designed to exclude testimony not itself obnoxious to its prohibition, from which inference of what was done between the parties might be drawn. The .objection to the second inquiry was rightly sustained. The witness knew of the amount of care exacted from deceased only from personal transactions with him, and the question called for her conclusion with reference thereto.

Other questions raised will not be likely to arise on another trial.

Because of the errors pointed out, the judgment is reversed. considering this appeal, for that, as is argued, no errors for reversal are assigned. The formal assignment of errors