40 N.W.2d 286 | Iowa | 1949
The important questions here concern the extent, if any, to which claimant was disqualified as a witness under the "dead man's statute," section
The answer admitted there was a purported marriage ceremony between claimant and decedent, Michael Fili, November 25, 1936, and that said marriage had previously, in the estate proceedings, been adjudged illegal because he had a wife living and undivorced. It seems undisputed the wife was in a mental institution at all times pertinent to the litigation. Trial was to the court — jury waived.
The trial court first awarded claimant one half the net estate *64 after "all proper allowances and dower interest" were set aside to the widow and "all proper claims and costs" were paid. Thereafter, upon motion by defendant-administrator ("for judgment notwithstanding") the court set aside the first award and allowed claimant $3000. The administrator has appealed.
The administrator assigns error in permitting claimant to testify to personal conversations and transactions with decedent, and urges insufficiency of proof of the amount and value of work performed and of proof that it was neither gratuitous nor unpaid for.
Claimant advances various propositions: 1. That the "dead man's statute" does not apply since claimant was not seeking to recover on contract, express or implied; 2. that the administrator by his testimony opened the door to testimony by claimant; 3. that even though some of claimant's testimony should be held improperly admitted and were to be stricken, there would still be ample evidence to support the allowance; 4. that the burden was not on her to prove either that the services were not gratuitously rendered or had not been paid for; and, 5. that there was sufficient competent testimony as to the amount and kind of service rendered to support the allowance.
[1] I. Some contention is made here that the proceeding was in equity or equitable in its nature. We find no merit in this argument. It was a probate proceeding on a claim. We think it was triable at law, and was so tried. Jury was first demanded, then waived, the court ruled on objections to evidence, and changed the original award by a ruling on a motion "for judgment notwithstanding." Probate proceedings are inherently at law. In re Estate of Jenkins,
[2] II. It is also argued the "dead man's statute" does not apply here since claimant is seeking recovery for "unjust enrichment" and not "on the basis of a contract, express or implied in fact," and, therefore, she was a competent witness to testify concerning *65
her transactions and communications with decedent. Even if the premise were conceded we know of no such limitation on the operation of the "dead man's statute." No case is cited here to support the proposition. The language of section
The fact, if it be a fact as stated by claimant, that all our cases (involving claims for services rendered) in which the statute was applied were cases where the rejected testimony was offered to establish an express or implied contract, is not controlling. Of course services are almost invariably rendered pursuant to contract, express or implied, and cases involving them usually run into the problem presented by the "dead man's statute." But it does not follow the statute would not apply to other cases.
[3] Furthermore, we think claimant's case here does ultimately rest on the theory of implied contract, that is, contract implied in law or constructive. 17 C.J.S., Contracts, section 4; City of Pella v. Fowler,
[4] III. The administrator testified in his own behalf and it is argued his testimony related back and acted as a waiver (under section 622.5, Iowa Code, 1946) of objections to claimant's competency. That section is a part of the "dead man's statute" and provides: "This prohibition shall not extend to any transaction or communication as to which any such * * * administrator * * * shall be examined on his own behalf * * *." *66
The administrator testified: "November, 1936 [the date of claimant's and decedent's illegal marriage], I lived in Boys Town, Nebraska, Father Flanagan's * * * I came to my father's house here in Sioux City, 607 Main St., no other members of my family were there at that time; a year and a half later I came there to live; Wilma [sister] came for awhile and my sister Orella." He said his sisters were aged fifteen and seventeen, respectively, both going to school. "Helen Russell was living with my father at the time * * * she was there in the house; after I came back in the winter of 1938 I lived there * * * I would say about four months." He also testified his father brought claimant along to Boys Town when he came to see his son there on at least two occasions.
The administrator testified to conversations he overheard between his father and claimant. They pertained to objections on claimant's part to the presence of the children: "I knew you had a wife, but if I had known that you were going to bring your brats home I wouldn't have gone through with the ceremony."
On cross-examination he testified he was married, had three children and that he placed one with his father while he was a patient at Oakdale Tuberculosis Sanitorium and his wife was there doing nursing. He said the child was six months old, but he denied claimant had the care of it. He said his father and twenty-six-year-old brother Tony (who had been an inmate of an institution for feeble-minded) cared for the child: "I placed him in my father's care and my brother took care of him."
He further testified (on cross-examination):
"What I am saying is that while my father was living with Helen Russell my mother was living but he wasn't divorced from her; this situation lasted about a twelve-year period of time * * *; during this time * * * she performed a little service around the house but during the time my brother was there [length of time not shown] my brother did the washing, washed the dishes, swept the floors, did the dusting and everything else."
It will be observed that only in his cross-examination did the administrator refer to matters bearing on the extent of claimant's services to decedent. It was not objected to as improper cross-examination. Had it preceded claimant's testimony it would *67
have made her competent to testify, as she in fact did testify: "I did the washing, ironing and cooked for him and kept his house clean. On an average the hours a day of labor in taking care of his house and clothing, etc. was from eight in the morning until eleven at night, seven days a week." See Ridler v. Ridler,
But as to that part of claimant's testimony she was incompetent when she gave it. In re Estate of Kahl,
The contrary rule is adopted in Nebraska:
"Whether the testimony of the witnesses was objectionable when offered or not, such testimony was made competent through the action of the appellant in introducing evidence of the same transaction after the testimony of such witnesses had been received." Warnick v. Warnick,
The present case is perhaps stronger than the cited Kentucky case in that here the testimony of the administrator was elicited on cross-examination, which, though not objected to on that account, was hardly proper cross-examination. It was not voluntary. It has been said testimony of the adverse party relied on as waiving the statute must be brought out voluntarily by such party. 70 C.J., Witnesses, section 483, *367.
Claimant was incompetent to testify to the nature and extent of her service rendered under a relationship to the existence of which she could not testify. *68
[5] IV. It is argued on claimant's behalf that even though some of claimant's testimony be held to have been improperly admitted there would still be sufficient of her own and other's testimony to sustain the court's judgment. This reasoning overlooks the holding in our recent case of In re Estate of Conner,
[6] However, as to much of claimant's testimony we do not find that situation to exist. While, as we have already pointed out, claimant's testimony as to household services cannot be considered, she was not incompetent to testify that at the time of the purported marriage decedent owned no property and that he was unemployed; that after a short time of "odd job" employment he became employed at Swift's and remained so employed almost to the time of his death; that during that time he purchased six houses in Morningside on Sherman Avenue, six houses on Main Street between Sixth and Fifth in Sioux City and apparently "five additional houses on Main Street"; that these properties were bought on small down payments and the balance on small monthly payments out of wages and rentals; and that about two years before he died he built a grocery store.
[7] We cannot hold this was testimony "in regard to any personal transactions or communications" with decedent. Testimony otherwise competent is not rendered incompetent because an inference of preceding personal transactions or communications may be drawn therefrom. Campbell v. Collins,
V. Two witnesses (a sister and brother-in-law of Ruth Fili) testified to conversations with claimant one or two months before the "marriage" in which she expressed doubt that decedent could get a divorce. One such conversation (with the brother-in-law) was on the occasion of a casual meeting on the street. Another was at the witness' home.
[9] Claimant did not, on rebuttal, directly deny these conversations though no question of her competency could have been raised had she done so. She merely testified emphatically both on her main case and on rebuttal she did not know before the death of Michael Fili that she was not his legal wife, and that she did not know he was not a single man. She testified to no conversation with decedent on the subject and gave no reason for her belief in the legality of her "marriage." She was not incompetent to so testify in absence of a showing her belief rested upon representations by or conversations with decedent.
The trial court expressly found "that insofar as the claimant is concerned she entered into a marriage ceremony and marriage relationship honestly and in the belief that she and the deceased were legally married." We cannot say this finding was without support.
[10] VI. Defendant argues the burden here was on claimant to show her services were not in fact paid for. He admits the general rule that payment is a defense but argues there is, or *70 should be, an exception "where no books or records of the intestate's business were kept."
No Iowa authority is cited and no case from any other jurisdiction except Theobald v. Stinson, 38 Me. 149. We find no logical basis for such an exception.
[11] Nor are we disposed seriously to consider the contention that under this record the services of claimant should be presumed to have been gratuitous until showing is made to the contrary. The nature of the case makes any such rule inapplicable. Of course when such services are rendered there is no intention they will be paid for in wages. But the actual intention becomes immaterial when shown to have been induced by fraud or mistake. The law then implies a contract and indulges no presumption the services were intended to be gratuitous. Restatement of the Law, Restitution, section 40, page 155 et seq. See also reporter's notes on section 40, pages 25, 26, where it is stated the authorities are not in agreement but that later cases sustain the rule stated. We have no doubt as to its soundness. In fact, defendant does not question that a right of action was pleaded and could exist if proven.
VII. We notice last the contention that there is no sufficient proof of the amount and value of the services rendered. There is, however, evidence of the reasonable value of domestic labor and of service as clerk in a grocery store. It is also shown decedent had no property at the time of the purported marriage and, as found by the trial court, "during the twelve years of their relationship, through their combined efforts, considerable property was accumulated in the name of the deceased." We assume the statement is based on showing from the probate files though they do not seem to have been offered.
We have already said the theory of "unjust enrichment" pertains to the question of measurement of value of the services rendered. The contract implied here is not one of mere employment for wages. Testimony as to the amount and nature of the service and the reasonable wages therefor is competent but not controlling.
[12] Assuming her good faith, plaintiff entered into not a contract of employment but a relationship — not indeed the one she intended but one comparable or analogous to the marriage *71 relation. In fixing the amount of her recovery, if any, there should be taken into account the benefit accruing to decedent's estate by reason of such relationship.
There are few, and apparently conflicting, decisions involving facts comparable to the record here. In an early Massachusetts case plaintiff was denied recovery because she based her claim upon an implied contract and it was held there could be no contract for wages implied since the parties lived together as husband and wife and that her remedy, if any, was either for breach of promise or deceit. Cooper v. Cooper,
In Sanders v. Ragan, supra (
We prefer the doctrine announced in these later cases, but because of the error pointed out in Division III hereof the case must be reversed. — Reversed.
HAYS, C.J., and HALE, OLIVER, GARFIELD, MANTZ, MULRONEY, and WENNERSTRUM, JJ., concur. *72
