14 W. Va. 88 | W. Va. | 1878
delivered the opinion the Court *.
This is an action of assumpsit, brought in the county of Wirt by the plaintiff, against the defendant, as administrator of George W. Owens, deceased. The declaration in’the case has several common |counts, and among others the following: “And in $l,400,00for services rendered by the plaintiff to the said George W. Owens in his lifetime, as housekeeper at the rate of $3.00 per week for three hundred and seventy weeks, under an agreement made by and between the plaintiff and the said George W. Owens, to be paid at and after the death of the said George W. Owens, and for which services^ which were rendered at ’the request of said George W. Owens, he the said Owens in his lifetime promised and agreed to pay to the plaintiff at the rate of $3.00 per week from the 3d day of April, 1868, until the 14th day of May, 1875; and the plaintiff avers, that the said George W. Owens died on the— day ox May, 1875, and she therefore avers, that an action hath thereby accrued to her to demand the aforesaid sum of money, and to
The plaintiff filed with her declaration the following account or bill of particulars, viz :
“John A. Oxoens, as administrator of the, estate, oj Geo. W-Owens, deceased, in account with Mary JH. (hocus :
DR.
“For services as a house-keeper for the said George W. Owens, deceased, from the 3d day of April, 1808, to the 14th day of May, 1875, being throe hundred and seventy weeks, @ $3.00 per week by agreement with George W. Owens.$ 1,110 00
“For services in nursing and waiting on Willis Owens, deceased, the lather of Geo. W. Owens, three hundred and seventy weeks at $3.00 per week. 1,110 00
“For weaving, spinning, marketing and out door labor performed, besides services as housekeeper.'.. 1,110 00
For 12 bushels wheat @ $1.50 per bushel.. 18 00
*91 Mary E. Owens
vs.
John A. Owens, Administrator of Geo. If. Owens deceased.
► In assumpsit.
In the Circuit Court of Wirt county ;
“The defendant will take notice that the plaintiff will relv on proof of tlie above account on the trial of said cause.
“Mary E. Owens, plaintiff,
“By, &c.”
It would seem, that issue was joined in the cause upon the general issue of non assumpsit. On the 14th day of October the jury cmpannolled in the cause in said circuit court returned to the court their verdict, in and by which they found for the plaintiff, and assessed her damages at $518.00. Whereupon the defendant, by his attorney, moved the court to set aside the said verdict and award him a new trial, on the ground that the same is contrary to the law and the evidence, which motion was continued until the next term.
Afterwards on the 5th day of June, 1877, the said circuit court, considering that the said1 verdict was “excessive and not fully sustained by the evidence in the cause, was of opinion to set aside the verdict aforesaid on the usual terms, unless the plaintiff elected to release all of said verdict except as to the sum of $200.00. Whereupon the plaintiff, by her attorney,” in open court released all of said verdict except the sum . of $200.00. And thereupon the court rendered judgment in favor of the plaintiff against the defendant, administrator of G. W. Owens, deceased, for the sum of. $200.00 with interest thereon from the 14th day of October, 1876, till paid, and the costs of suit to be satisfied of the goods and chattels of the said G. W. Owens, deceased, in the hands of the said J. A. Owens, unadministered.
It appears by a memorandum entered of record at the foot of said judgment, that “on the trial of this cause the defendant excepted to an opinion of the' court, and
“Be it remembered, That on the trial of this cause the plaintiff, to maintain the issue upon her part, was introduced as a witness in her own behalf to testify in relation to the matters constituting.her claim against the estate aforesaid, to which defendant objected, on the ground that she was not a competent witness as to any transaction or communication had with the deceased personally involved in this cause ; but the court ruled, that while the plaintiff could not under the statute testify as to any transaction or communication had with the deceased, she was competent to testify as to her work and labor and services rendered for the deceased, and what things she did in and about the work and labor, she is alleged to have performed for the deceased in his lifetime, whilst she lived with him, and that she was his sister, and had taken charge of the household affairs of the deceased, and had sold produce, and bought provisions for the house with such produce, and had nursed deceased .in his sickness; and so the said plaintiff did testify in effect as hereinbefore stated; and the evidence was before and heard by the jury, and they considered the same. To which ruling of the court the defendant excepted, and this his bill of exceptions tenders, and prays that the same may be signed, sealed and saved to him, and made a part of the record in thig cause.
"James M. Jacicson, [Seal.]”
To said judgment of said circuit court, rendered on the 5th day of June, 1877, for said $200.00, &c., the defendant obtained a supersedeas; and thus the case is before us for review and determination.
The first error assigned by the defendant in his petition for a supersedeas is, that “the plaintiff was incompetent as a witness in regard to the matter, upon which she
The 22d section of chapter 130 of the Code of this State of 1868 provides, that “no person offered as a
As we have seen, this suit is brought by the plaintiff against the defendant as the administrator of George W. Owens, deceased; and it is manifest from what has preceded and from the record, that the chief object of the suit was to recover by the plaintiff a large sum of money for work and labor, claimed to have been done by the plaintiff for said Owens, deceased, before his
A contract, whether express or implied by law, is a-transaction. And it seems to mo, that when one person testifies, that he did work and labor for another, generally he must be taken and considered as testifying to a transaction, in legal contemplation, between him and such other person, within the true meaning and intent of the law now under consideration, because the testimony of the witness tends to prove, in legal effect, not only a request to do the work, but also a promise to pay him therefor, what the same was reasonably worth,, and also that ho did the work in consideration of such request. The doing of the work and labor is the consideration of the contract or promise to pay, whether express or implied, and it seems to mo, cannot be separated from the contract or transaction verycasily.
My mind is impressed with the conviction, that the true and proper construction or interpretation of the words “ any transaction or communication had personally with a deceased person,” as used in the law, is, that it is thereby meant, any transaction or communication had with a deceased person otherwise than through an agent or third person. The spirit of the law, as I think, is
The question here is: “ .Does the testimony tend to prove what the transaction was?” Stanley v. Whitney, 47 Barb. 586; Strong v. Dean, executrix, 55 Barb. 337.
Tin; court allowed the plaintiff, as I understand the
In the case of Peck v. McKean, 45 Iowa 18, by Runnells, it was held that “in an action against an administrator to recover upon an implied contract for services rendered the deceased, the plaintiff cannot be permitted to testify to the facts, which would raise an implied promise.” Smith v. Johnson et al., Id. 308. See also Ross v. Ross et al., ex’rs., &c., 6 Hun. (N. Y.) 182. This court has heretofore rendered some decisions bearing somewhat upon the question considered here. See Calwell v. Prindle’s adm’r et al., 11 W. Va. 307; Anderson v. Cranmer et al., 11 W. Va. 562.
Counsel for plaintiff has cited for our consideration the case of Simmons et al adm’rs &c. v. Sisson, 26 New York 264. In that case Rosecrans, Judge, stated as his opinion, that section 399 of the Code of New York of 1862 did not prohibit a party sued by an administrator from
Counsel for plaintiff has also cited us to the case of Card v. Card et al., 39 New York 317. I have carefully examined this case, and think the point, and in fact the only point, decided by the court in that case, was correctly decided. The point there decided was, that, “in an action against the heirs at law and administrator of a deceased to compel specific performance of an alleged agreement by the deceased to convey land to the plaintiff, the plaintiff is entitled to be sworn asa witness on his own behalf, although he is not competent to testify to transactions had with the deceased personally. It is true Judge Woodruff in his opinion gave utterance to some views, which he regarded as perhaps applicable to that case by way of supposition, which seem to support to some extent the ruling of the circuit court in the case at bar ; but most of these views are mere dicta. Some of them are doubtless correctas applicable to the case then before the court; but I do not now with my present convictions feel authorized to endorse the correctness of the views of Judge Woodruff throughout, as expressed in his opinion and as applied to the case then before the court. When such questions, as Judge Woodruff supposes in his opinion, arise before this court in a similar case to that
Counsel for plaintiff have also cited us to the case of Lobdell et al. v. Ammer Lobdell, 36 N. Y. 327. This case supports the opinion of Judge Rosecrans before referred to, but, as before stated, the question decided there is not in my view the same in principle as the question before us in the case at bar. When such a question as that decided in 36 N. Y. fairly arises upon the record in a case before us, we will feel disposed to consult that case, and consider it, and .give it the weight and influence upon, our minds and judgment, to which it may be entitled.
We are also cited by the counsel for the plaintiff to the case of Franklin v. Pinkney, 18 Abb. Pr. 186; but that book is not to be found in the State library nor can we find it in any of the private libraries in Wheeling.
There are no doubt many facts and circumstances, to which a party to a suit against an administrator, (fee., may testify as a witness in his own behalf, which transpired or occurred during the lifetime of the decedent, and which may in some respects be material and cannot be said to be transactions or communications had personally with the decedent; but it is impossible to undertake to specify them in advance, each case must to some extent be decided, as it shall arise.
Under the view I have taken of this case, it is perhaps unnecessary to consider the defendant’s second assignment of error; but I will say, that I do not think it well taken. The court no doubt meant, when it said the verdict was excessive and not fully sustained by the evidence in the cause, that the verdict was not fully sustained by the evidence as to the amount thereof. It is insisted however by the plaintiff, that the bill of exceptions of the defendant was filed too late to be of avail in this Court. I think this question is fully answered by the opinion of Judge Moncure in Winston v. Giles, 27 Gratt. 534, 535, 536, 537 and 538.
For the foregoing reasons the judgment of the circuit court of the county of Wirt, rendered in this cause on
. JudgmeNt Reversed. Cause Remanded.