Opinion
No. 32445.
December 7, 1936.
1. EXECUTORS AND ADMINISTRATORS.
Evidence held to sustain determination that deceased, on going to claimant's home to live, promised, as compensation for her support and care, to make will leaving all her estate to claimant.
2. EXECUTORS AND ADMINISTRATORS.
Evidence in support of claims for services to a decedent must be clear and reasonably positive and be closely scrutinized.
3. EVIDENCE.
In contest of probated claim for services rendered to deceased, testimony that deceased stated to witnesses, but not in claimant's presence, that deceased was paying and had paid claimant $10 per month for her board and laundry, held properly excluded; declarations being of self-serving nature.
4. EXECUTORS AND ADMINISTRATORS.
Where claimant and deceased were not related by blood and only remotely by marriage and deceased rendered no services in return for claimant's support and care but had to be waited on much like an invalid and was well able to pay for care and support furnished, such facts raised obligation on deceased's part to pay therefor at what care and support were reasonably worth, in absence of express proof that they were not to be paid for, or were to be compensated at some other rate.
5. EVIDENCE.
Facts in respect to services and for support of one who had to be waited on much like an invalid and knowledge of value thereof are such as come within general experience and observation of all sensible persons, and witness need not be skilled or expert to give testimony in regard thereto.
6. APPEAL AND ERROR.
Admission of incompetent testimony of physician who attended deceased, in contest of probated claim for services rendered to and support furnished deceased, held not to require reversal where other evidence sustained decree for claimant.
7. EXECUTORS AND ADMINISTRATORS.
Where parties make oral agreement that one is to care for and support the other who is to make compensation therefor by way of will which is never made, party rendering care and providing support under such agreement may recover therefor on quantum meruit.
APPEAL from the chancery court of Jones county. HON. WM. EDWARDS, Special Chancellor.
Shannon Schauber, of Laurel, for apellant.
The lower court erred in permitting Dr. J.B. Jarvis, who treated Mrs. Peck, the deceased, to testify on behalf of the appellee. We submit that this testimony was incompetent and should have been excluded under section 5336 of the Mississippi Code of 1930 known as the "Communications Privilege." This statute has been construed and approved by many decisions of this court.
Railroad Co. v. Messina, 109 Miss. 143, 67 So. 963; I.C.R. Co. v. Messina, 111 Miss. 884, 72 So. 779; Hamel v. Railroad Co., 113 Miss. 345, 74 So. 276; Newton Oil Mill v. Spencer, 116 Miss. 568, 77 So. 605; U.S.F. G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; McCaw v. Turner, 126 Miss. 260, 88 So. 705; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 106 So. 753, 142 Miss. 210.
The lower court erred in excluding the testimony offered by the appellant showing that Mrs. Peck, during her lifetime, agreed to pay Mrs. Owen, the appellee, the sum of ten dollars a month for room and board and twenty-five cents a week for washing. We submit that these statements made by Mrs. Peck were competent on the grounds that they were statements made by her against her interest, that is, showing that she had agreed to pay for room, board, and washing.
Jones on Evidence, chapter 10, "Hearsay," sec. 323, page 405.
Mrs. Owen, a widow, without property, was supported by her own labor, assisted by the wages of one son. Naturally Mrs. Peck would want to pay something monthly for her board and lodging. During that time Mrs. Peck drew from her savings account in the First National Bank of Laurel, Mississippi, the sum of nine hundred twenty-seven dollars, deducting the five hundred dollars that she loaned, would leave four hundred twenty-seven dollars unaccounted for, which would more than enable her to have paid Mrs. Owen the amount she had agreed upon. But whether she paid this ten dollars a month board and lodging and twenty-five cents a week for washing, or not, is immaterial. Mrs. Owen would be entitled to recover this amount, which is about four hundred twenty-seven dollars, provided it could not be shown that it had been paid by Mrs. Peck.
Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611.
From this record there can be no doubt but what it was the intention of Mrs. Peck to make a will and leave all of her property to Mrs. Owen, but for some reason Mrs. Peck died before this will was made. Since the will was not made, we contend that the property should go to the heirs of Mrs. Peck.
Ellis v. Berry, 145 Miss. 652, 110 So. 211.
If for nothing else, we think this case should be reversed in order that the court might be advised as to what was a reasonable value for the services rendered by appellee and since the case should be reversed, we think on a retrial appellant should be permitted to prove that Mrs. Peck had an agreement with Mrs. Owen during Mrs. Peck's lifetime by which Mrs. Peck was to pay her ten dollars a month for board and lodging and twenty-five cents a week for washing.
D.B. Cooley, of Laurel, for appellee.
We do not think it was error for Dr. Jarvis to state that Mrs. Owens gave Mrs. Peck hypodermics of insulin, and that he instructed her how to administer it; and that when he called to see Mrs. Peck professionally he always found Mrs. Owens there nursing her and looking after her.
Counsel for appellant contends that he should have been permitted to prove statements made by Mrs. Peck to third parties, not in the presence of Mrs. Owen, that she was paying ten dollars per month board and twenty-five cents per week for washing, and that she paid it every month. It would hardly be contended that Mrs. Peck would not have a pecuniary interest in amount the board she was paying. If it was permissible to prove that she stated she was paying ten dollars, it would be permissible to prove that she stated she was paying one dollar; and to permit a witness to state that Mrs. Peck told her she paid her board every month would not be permitted under any circumstances.
Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; Jackson v. Johnson, 88 So. 410.
In the case at bar, it is agreed that Mrs. Peck was to pay for her board and room rent and other services. The amount she was to pay and whether or not she had paid it cannot be proved by statements made by Mrs. Peck to third parties, not in the presence of Mrs. Owen, because of her pecuniary interest, and her possible motive to falsify the facts declared. Her statements would be pure hearsay, and self serving.
The chancellor had all the facts before him as to the services rendered, and in view of their character, it was not necessary for claimant to introduce any opinion evidence on the question. Certainly this court will not reverse the case on this point simply to allow the complaining party to introduce testimony that he could have introduced on the first trial. The chancellor's findings on the facts will not be disturbed unless it can be clearly shown that there is not sufficient testimony to support them.
On or about February 24, 1933, Mrs. Elizabeth T. Peck, a widow, without children, went to the home of appellee, also a widow, to live therein as a member of appellee's household, and did so live there until her death. Mrs. Peck was about seventy-five years of age and was afflicted with rheumatism and diabetes, as was proved by several nonprofessional witnesses without objection. These afflictions, together with her advanced age, rendered her practically helpless much of the time, and at all times day and night her condition required watchfulness and the presence of some competent person within call. Appellee gave her board, prepared her meals, did her laundry, and administered her medicines, which included on the average two hypodermic injections of insulin per day. Some of the witnesses speak of the service rendered as being that which a daughter would render to her aged mother, and all the evidence justifies that characterization.
The proof shows that appellee and Mrs. Peck were not related by blood, and only distantly by marriage, and that when Mrs. Peck went to appellee's home to live the agreement was that, as compensation for her support and care, Mrs. Peck would make a will leaving, at her death, all her estate to appellee; and this proof was so strongly made as to meet the rule, established in this state, that the evidence in support of claims for such services to a decedent must be clear and reasonably positive and must be closely scrutinized. Tarver v. Lindsey, 161 Miss. 379, 383, 137 So. 93. The record does not disclose what estate Mrs. Peck had when she went to appellee's home, except that she had on deposit in bank nearly three thousand dollars. Nor does the record fully disclose the financial condition of appellee, although it is fairly inferable from what is shown that appellee had only her home and was maintained therein by her son, who lived there with her.
Mrs. Peck survived until March 9, 1936. For some reason, not explained, she did not make a will; but the evidence does disclose that in the morning before her death, which occurred thereafter, about dark, she requested a neighbor then present to go to the bank and to get the man at the bank so that "I can make Rosa my will" — Rosa being appellee's name. This request seems not to have been granted, nor was the reason for the failure explained. The appellant bank was appointed administrator of Mrs. Peck's estate, and, within the time and in the manner required by law, appellee probated her claim against the estate for one thousand and ninety-three dollars "for board and room rent, laundry work done and for nursing," being at the rate of one dollar per day for one thousand and ninety-three days. At the request of some nieces and nephews, the heirs at law of Mrs. Peck, the administrator contested the claim, on the alleged ground that the contract or agreement between Mrs. Peck and appellee was that the services and support mentioned would be rendered and furnished for ten dollars per month, and that same had, from time to time, been paid as rendered. Upon the hearing the chancellor sustained the probated claim and disallowed the contest of the administrator.
In addition to the proof of an original express oral agreement that appellee was to be compensated by a will, appellee proved also that Mrs. Peck, on subsequent occasions, made statements in affirmance of that understanding. In order to meet the case thus made, the contestant offered several witnesses who testified, or proposed to testify, that Mrs. Peck had stated to them, but not in the presence of appellee, that she (Mrs. Peck) was paying and had paid appellee ten dollars per month for her board and laundry. The chancellor excluded this testimony, so offered by the contestant, and this action is the basis of the principal assignment of error.
We are of the opinion that the assignment is not well taken. Here the parties were not related by blood and only remotely by marriage; there are no circumstances in evidence which cast any moral obligation upon appellee to render the services; the decedent rendered no services in return, but instead had to be waited on much like an invalid; the decedent was well able to pay for the care and support furnished. These facts are amply sufficient to raise an obligation on the part of the decedent to pay therefor at what the care and support was reasonably and justly worth, unless there were express proof that they were not to be paid for, or were to be compensated at some other rate. The services rendered in this case, according to all the proof, were of such character that any person of the slightest knowledge and appreciation thereof would know that any such sum as ten dollars per month therefor would be grossly inadequate; whence it follows that the declarations sought to be introduced by the contestant would be of a self-serving nature, which, under elemental rules, are not receivable in evidence. Moreover, and in justice to Mrs. Peck, it is to be noted that her statements about the ten dollars per month did not say that that sum was to be all that was to be paid or was paid in the absolute discharge of all compensation for all the services rendered and to be rendered; and any inferences to be drawn from the said statements that the ten dollars was to be in full may well be considered as overcome or displaced by way of reconciliation by and with her other statements and her express contract that the ultimate compensation for the whole of the services rendered would be the making of the will.
It is assigned as error that there is no specific testimony as to the value of the services, measured in terms of dollars and cents, except by one witness, a next-door neighbor, and appellant contends that this witness was not shown to be qualified to pass on the value of such services. Several witnesses, nearly all of them neighbors, testified in regard to the character of the services showing the facts thereof fully and from their own personal knowledge, including this particular witness. Facts in respect to services of this kind and knowledge of the value thereof are such as come within the general experience and observation of all sensible persons, and it requires no skilled or expert witness to give evidence in regard thereto. 22 C.J., pp. 518, 519.
It is assigned also that the court erred in admitting the testimony of the physician who attended Mrs. Peck throughout the time she lived at appellee's home. Some of the physician's testimony was competent and admissible; other parts of it were not. But conceding that all his testimony was inadmissible, the decree cannot be reversed, because there is abundant testimony to sustain the decree without the physician's testimony. The rule is that although improper evidence has been admitted, if, nevertheless, there is enough competent evidence to sustain the decree, there will no reversal. Union Planters' Bank Trust Co. v. Rylee, 130 Miss. 892, 907, 94 So. 796. See other cases cited note 10, Griffith Chan. Prac., p. 785.
In Ellis v. Berry, 145 Miss. 652, 110 So. 211, it was held by this court that when parties, in a situation similar to that presented in this case, make an oral agreement that one is to care for and support the other and that the latter will make compensation therefor by way of a will to the former, which will is never made, the party who has rendered the care and provided the support under such an agreement may recover therefor on the quantum meruit. Such is the proceeding in this case, and since the proof is sufficient and no reversible error is shown, the decree must be affirmed.
Affirmed.