Smith v. Perdue

129 S.E.2d 293 (1963)

258 N.C. 686

Troy SMITH v. William C. PERDUE, Administrator of the Estate of W. P. Moser, and William C. Perdue, Administrator of the Estate of Maggie J. Moser. Willis SMITH v. William C. PERDUE, Administrator of the Estate of W. P. Moser, and William C. Perdue, Administrator of the Estate of Maggie J. Moser.

No. 741.

Supreme Court of North Carolina.

February 1, 1963.

*295 Clarence Ross, Graham, Thomas C. Carter, Burlington, and B. F. Wood, Graham, for plaintiff-appellees.

Allen & Allen, Burlington, for defendant-appellants.

SHARP, Justice.

Over objection, each plaintiff testified for the other. This was permissible procedure and defendant's assignments of error to the evidence thus elicited are not sustained. We have consistently held that in actions of this kind the relationship of husband and wife does not render the testimony of one for the other incompetent under G.S. § 8-51. Burton v. Styers, 210 N.C. 230, 186 S.E. 248; Scottish Bank v. Atkinson, 245 N.C. 563, 96 S.E.2d 837.

As a witness for her husband, Willis Smith testified that in March 1941 while they were visiting in the home of the Mosers, Mr. Moser said to him: "Troy, we are getting up in years and we have no children, and their will be lots of things we need to have done for us that we can't do ourselves. Will you do these things for us as long as we live? We will take care of you well for these services in our wills. I want you to have a tract of land, enough to make you a living and enough money to build a nice house." To this question she testified that her husband answered, "I will so long as you live." She further testified that Mrs. Moser was present when this conversation took place and she said, "We have talked this over many times and this is what I want, will you do it?" and he said, "Yes, I will so long as you both live."

Troy Smith, as a witness for his wife, testified that he heard both Mr. and Mrs. Moser tell her that she was doing what she was told to do in carrying out the plan and that she would be taken care of in their will.

Numerous other witnesses testified that at various times between March 1941 and May 1960, both Mr. and Mrs. Moser had *296 declared that plaintiffs had more than fulfilled their promises; and that they would be repaid for all they had ever done for them.

The evidence of plaintiffs further tended to show the following facts:

Up until about 1945, when his physical condition forced him to give it up, Mr. Moser had operated a dairy farm. He suffered with high blood pressure, arthritis and urinary disturbances. Mrs. Moser had a lung ailment, hypertension, cardiac enlargement, and circulatory disorders resulting from an embolism. Services rendered by Mr. Smith included cutting and hauling wood, feeding cattle, delivering milk, getting groceries, feeding chickens, mending fences, cleaning the milk house, carrying Mr. Moser to the doctor, sitting up with him at night, and assisting with the periodic treatments his condition required. Mrs. Smith on occasion cooked and cleaned house, canned and froze produce, gave medicine and helped nurse. Plaintiffs, although they did not live with Mr. and Mrs. Moser, were on call day and night.

The evidence was plenary to overrule the motions of nonsuit.

Based on the services which they themselves actually saw rendered, witnesses testified that the value of Troy Smith's service to Mr. Moser was from $40.00 a week to $1,500.00 a year and to Mrs. Moser, from $20.00 a week to $750.00 a year; that the value of such services rendered by Willis Smith to Mrs. Moser was from $15.00 a week to $300.00 a year and to Mr. Moser, from $5.00 a week to $25.00 a month. This evidence was competent; its weight for the jury.

Over objection, the son of plaintiffs testified that on the afternoon after Mrs. Moser's death, Mr. Moser said to him, "Ronnie, Miss Maggie is gone. As you know, she died this morning. Willis and Troy have continued to care for us as they said they would and I am sure that they will continue to care for me and I plan to well pay them for this service." The court admitted this statement against both estates and the administrator assigns it as error in behalf of both. The statement was clearly competent as an admission against the estate of W. P. Moser. Gidney v. Moore, 86 N.C. 484; Stansbury, Evidence, Section 174; 31 C.J.S. Evidence § 334. It was likewise admissible against the estate of Mrs. Moser as a declaration against interest. Her net estate belonged to Mr. Moser. G.S. § 29-14(4). He is now dead; the statement was against his pecuniary interest; the facts were within his personal knowledge; he made it at a time when there was no motive to misrepresent. Roe v. Journegan, 175 N.C. 261, 95 S.E. 495; Stansbury, supra, Section 147.

Without objection, Mr. and Mrs. Rainey Pope, witnesses for plaintiffs, testified that they heard Mrs. Moser say in the presence of Mr. Moser that there was a tract of land they wanted Troy to have; that they hoped he would build there and be closer to them or closer to the farm. Mrs. Addie West also testified, without objection, that both Mr. and Mrs. Moser told her they wanted Troy to have a twenty-one acre tract of land known as the peach orchard for a home. Over objection, she was permitted to testify that sometime during the last fifteen months of their lives Mr. Moser had declined an opportunity to sell it because he had said he wanted Troy to have it. Also over objection, Mr. Pope testified that the peach orchard was worth $2,000.00 an acre in 1959 and 1960. However, at the conclusion of all the evidence, the judge instructed the jury not to consider the evidence as to the value of the land. He said, "The Court instructs you that you will erase it from your minds and not give any consideration to that evidence in making up your verdict in the case."

Evidence as to the value of the peach orchard was not competent. There is no suggestion in the case that either of the plaintiffs had agreed to render services in *297 consideration of a devise or conveyance of the peach orchard. The suggestions were that Mr. and Mrs. Moser hoped plaintiffs would build on the peach orchard during their lifetime so as to be near them. This is inconsistent with an intent to devise the property to the plaintiffs. There is nothing in the evidence to indicate that the value of the peach orchard was the value which the parties themselves put on the services plaintiffs were to render to the Mosers.

However, admission of incompetent evidence, even though it is not withdrawn, is no ground for a new trial unless prejudice is shown. Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326. The court withdrew this incompetent evidence and instructed the jury categorically not to consider it. Ordinarily, it is presumed that the jury followed such an instruction and the admission is not held to be reversible error unless it is apparent from the entire record that the prejudicial effect of it was not removed from the minds of the jury by the court's admonition. N.C.Index, Trial, Section 16. Whether the withdrawal of incompetent evidence has cured the error or created further prejudice is frequently a difficult question, and each case must be determined in the light of its own particular facts. Driver v. Edwards, 251 N.C. 650, 112 S.E.2d 98.

The defendant contends that the evidence under consideration here was so prejudicial that its effect could not be removed by an instruction to the jury not to consider it. However, in the charge, the judge stressed very forcibly that plaintiffs were only entitled to recover the reasonable value of the services rendered. Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764. He laid down the rule stated in Beasley v. McLamb, 247 N.C. 179, 100 S.E.2d 387, "Where an express contract for services * * * does not specify the amount of the compensation, a promise to pay the reasonable value of the services * * * is implied, * * *."

The evidence was voluminous and conflicting. Thirty witnesses testified. Mr. Moser was an intelligent, industrious man. He was represented by counsel, and alert until a few days before his death. The jury could have found that plaintiffs were paid for services as they were rendered and that their value was slight. However, it took the other view. The verdict was substantial, but when the jury found that the plaintiffs were entitled to recover for services rendered over nineteen years, we cannot say that the size of the verdict indicates that prejudice resulted from this incompetent evidence.

The defendant makes fifty-one assignments of error. Each has been considered, but obviously we cannot discuss them all. The issues of fact were submitted to the jury under a scrupulously impartial charge by an able judge. In the trial we find no prejudicial error.

No error.