Chapin v. Mitchell , 44 Fla. 225 ( 1902 )

Per Curiam.

Defendant in error sued plaintiff in error as executors of Horace E. Chapin, deceased, and obtained judgment, and the latter sued! out writ of error. The declaration contained a count that the deceased Horace E. Chapin in his lifetime became indebted to plaintiff in the ¡sum of $¡300 for services rendered 'by him to said Chapin at his request and which he promised to pay, but failed to do so, and which defendants also failed to pay on request. There were also other common counts.

The bill of particulars' was for service rendered to H‘. E. Chapin by E. A. Mitchell in attending-, nursing and caring for him at his request during his feebleness and weakness prior to and including his last illness. Defendants pleaded that the said Horace E. Chapin was never ■indebted as alleged. The hill of exceptions recites that plaintiff produced several witnesses who gave evidence to prove that plaintiff had rendered the services claimed in the cause and what would! be a reasonable compensation for the same.

It appears from the ordinary bill of exceptions that presents the only matters for determination on the assignments of error made, that there was testimony of both parties before the jury. Plaintiff was introduced as a witness to prove that he rendered the services sued for to Horace E. Chauin, the deceased, at a hotel in Orlando, from April, 1896, to the date of his death in April 1897. Objection was made by defendants on the grounds, first, that plaintiff was a party to the action and interested therein; second, that he was not rendered competent by section 1095, Revised ¡Statutes. The court overruled the objections and admitted the evidence, to which ruling exception was taken. Plaintiff was also permitted to testify, over the objection of defendants, that the services rendered Horace E. Chapin were those of a nurse and attendant of an invalid, such as giving- medicine, calling- a doctor, sitting- up at night to give medicine and in attending to the general duties in a sick room.

It was proposed to 'prove by plaintiff what other services he rendered Horace E. Chapin when he was not in the sick room, and defendants objected on grounds above stated. The court overruled the objections, and plaintiff testified that he served Horace E.v Chapin by attending to his correspondence and by accompanying him on his walks from April, 1896, to April, 1897, not continuously but only at timies when he was in need of the plaintiff. Exceptions were taken to the rulings of the court admitting this testimony and they present the only questions for our consideration.

Section 1095 Revised Statutes providing that “no person, in any court or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto; Provided, hotoever, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee, or committee of such insane person or lunatic; but this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor, or committeeman ¡shall be examined on his own behalf, or as to which the testimony of ¡such deceased person or lunatic shall be given in evidence.”

For defendant in error it is insisted that the rulings of the court were not in violation of the statute as constructed by this court, and: ¡special reliance is placed on the case of Deans v. King’s Exrx. 20 Fla. 533. This case belongs to a class of decisions of this court to which reference should be made in order that its bearing may appear, In 1852 tins court held that a book account was hot admissible as evidence of the sale and delivery of goods (Higgs v. Shehee, 4 Fla. 382), and in 1854 an act as: passed providing that “in all suits and actions at law or in equity, the shop books and books of accounts of either party in which the charges and entries shall have been originally made, shall be admissible in evidence in favor of either party, provided that the credibility of such evidence shall be judged of b y the jury in case® of trial at law, and by the court in cases -of a hearing in equity.” At the time of the passage of this act the common law disability of interested parties to testify had not been removed o'r modified by statute. It - hais remained as a part of our statutory system since it was enacted and is embraced in the Revised1 Statutes. Section 1120. This statute was construed in Hooker v. Johnson, 6 Fla. 730, and it was there held that the book entries to be admitted must be originally made, and contemporaneous with the transaction; that the book must appear to be fairly kept and free from erasures and interlineations, and that the party made affidavit that the articles were delivered, Mr the labor and services were actually performed, and that the entries were made at or about the time of the transaction and are the original enríes, and the charges have not been paid. Another case bearing on the admissibility of acount books in evidence and the oath of the party in connection therewith is Robinson v. Dibble’s Admr., 17 Fla. 457, decided after the passage of the act of 1874, Chapter 1983, substantially the same as section 1095 above quoted. It was held that the purpose of this act was to enlarge and not to restrict the competency of parties as witnesses and its .effect was to prohibit, a party being a witness as to transactions and communications between himself and a deceased person, but such party could still make his suppletory oath as.to his books of account, his cross-examination being restricted to the matter of the oath. It was also held that whether books of original entry are in such condition on account of erasures, interlineations and like causes, as to1 justify their submission to the jury was a question for the trial judge to determine. The result of the matter was that the statute, section 1095, supra, did not change the rule under the book account statute passed in 1854, and parties in interest emild still make the suppletory oath in ccnnection with such books the same a.s they could before the enlarging statute as to competency of witnesses was passed. The subsequent case of Deans v. King’s Exrx., supra, proceeded upon this theory of the law. It was there held that after proving his book account by his suppletory oath he could testify that the services charged in the book and sued for were actually performed by him. It was ruled that such evidence was not in contravention of the act of 1874, which only prohibited tes-, timony of transactions or communications in such cases: The cases cited in support of the ruling gave no countenance to the idea that the testimony there held to be admissible was competent independent of the statute in reference to the admission in evidence of account books: In the ease cited of Leggett v. Glover, 71 N. C. 211, it-appears that under an old book-debt statute a party could prove his account by his own oath up to sixty dollars1. A subsequent statute was passed giving a party the right to be a witness in his own behalf generally, but with a restriction that he could not testify as to any matter between himself and'a person deceased where his executor or administrator was a' party. It was held that it ' was not the purpose of the late -statute to narrow the competency of parties to be witnesses, but to widen the same, and that a party still had the right to prove his debt by his own testimony under the eld statute. A similar ruling was made in the case of Strickland v. Wynn, 51 Ga. 600, and the other cases cited In the case of Deans v. King’s Exrx., sufra,, except Belote v. O’Brien in this court, had reference exclusively to suppletory -oaths in connection with book accounts. It waisi probably never intended 'by the decision in the case of Deans v. King’s Exrx. to go- further than to authorize an interested party to add- his suppletory oath to the extent formerly adjudicated by this court in Hooper v. Johnson, in connection with a book account. The act of 1874, embodied in section 1095 Revised Statutes being intended to enlarge and not restrict the competency of witnesses, the former act of 1854, embraced in the revision, section 1120, was not repealed, and to the extent it goes it must be held not to include testimony as to transactions or communications between" the party, anda -deceased person within-the meaning of the exception in the act of 1874, now sectio'n 1095, Revised Statutes. What was decided in Lewis Exr. v. Meginniss, 30 Fla. 419, 12 South. Rep. 19, in reference to the suppletory oath in connection with, the account book its not in conflict with the decision in Deans v. King's Exrx. The case of Belote v. O’Brien, 20 Fla. 126, had no reference to the admission of-account books and suppletory oaths, but dealt with the admissibility of evidence under the exceptions to the act of 1874, Chapter 1983. It was held that the exceptions in the statute did not render a witness incompetent generally, but only io testify to transactions and commiunicationsi had with the deceased in his lifetimie, and that any party could testify to any pertinent fact if it does not come within tile exceptions. The testimony held to be admissible in that case related only to the value of certain medicines the like of which wais furnished to the deceased, as shown by other evidence, and what it was worth to make and,repair garments per year, and it was held not to be within the exceptions in the statute. When books of account are offered in evidence in connection with the suppletory oath of the party, the decisions in Hooker v. Johnson, Robinson v. Dibble, Deans v. King’s Exrx. and Lewis v. Meginniss, supra, will apply; but where the testimony has no-connection with book accounts, its admissibility must be governed by the statute found in section 1095 Revised Statutes.

As shown by the abstract, the court permitted the plaintiff to testify that he rendered the services sued for, that is in attending, nursing and, caring for the deceased at his request, and also that the services rendered deceased were those of a nurse and attendant of an invalid such as giving medicine, sitting up at night and attending to the general duties in a sick room. This testimony tends to prove such a transaction between plaintiff and deceased as would clearly show liability on the part of the latter. “Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions, or information from the conduct, condition or language of another.” Heyne v. Doerfler, 124 N. Y. 505, 26 N. E. Rep. 1044; Holliday v. McKinne, 22 Fla. 153. The testimony admitted is in violation of the exception in the statute that no party to the action or proceeding,, nor any person interested in the event thereof, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the ■time of such exámination deceased, against the executor,, . etc.

The testimony in reference to correspondence arid calling a doctor, brought out in the objections made, may under some conditions relate to matters not constituting a transaction or communication with the deceased, but the proposed offer, of testimony implied in the question objected to called for improper evidence, and should not have been allowed. The offer was to show what other’ service the plaintiff rendered to the deceased not in the sick room.

For the errors in the rulings mentioned the judgment is reversed and a new trial awarded. So ordered.