Giering v. Sauer

Pattison, J., delivered the opinion of the Court- This is an appeal from a judgment recovered by the appellee against the appellant in the Baltimore City Court, for board and services alleged to have been-furnished and rendered by the appellee to Joseph X. Giering, the appellant’s testator. The case was heard by a jury which rendered a verdict for 1he plaintiff for the sum of $600, upon which a judgment was entered for that amount. In the course of the tidal eleven exceptions were taken to the rulings of the Court upon I he admission or rejection of the testimony, one to its rulings upon the prayers, and another upon the ruling of the Court in refusing to inform the jury that certain testimony referred to by counsel for the appellee in his argument to the jury, had been stricken out- ²⁹⁷ The first three exceptions are to the rulings of the Court in permitting the appellee, Rellie C. Sauer, to testify as to the services she rendered to the defendant’s testator, and as to the amounts she had reecived in compensation therefor. The statute, section 3 of Article 35 of the Code of 1912, provides that, “No party to the cause shall he allowed to testify as to any transaction had with or statement made by the testator,” etc. This testimony was not admissible under this statute.

The witness, a party to the suit, was testifying as to the transaction with the defendant’s testator upon which she had brought her action, and the Court below, in permitting her to give such testimony, in our opinion, committed a prejudicial error. It is contended by the appellee that even though this testimony given by the witness in response to questions, to which •objections were made and exceptions noted, was inadmissible, nevertheless, the defendant was not damaged by the admission of this testimony because like testimony was permitted to be given by her without objection. As was said in the case of P., B. & W. R. R. Co. v. Greene, 110 Md. 45: “This class of testimony does not fall within the principle ■so often announced that the Court will not reverse the judgment where competent evidence favorable to the plaintiff’s ■cause has been first excluded, and afterwards admitted, because in such cases it is apparent that no injury has been ■done.” In this case the defendant objected to the admission of this testimony and his objections were overruled and the injurious testimony admitted, to which rulings he excepted. It was not necessary that he should continue to object to like testimony in order to avail himself of the exception so taken by him, but he had a right to stand upon his exception to the admission of such prejudicial testimony.

The fourth exception, the exact meaning of which is difficult to ascertain, but so far as we are able to understand it, is upon the Court’s ruling in admitting the conversation ²⁹⁸ between tbe husband of the plaintiff with the defendant, Dr. Giering, in the presence of the plaintiff after the death of Joseph X. Giering. In this conversation the plaintiff and her husband were told by Dr. Giering that his father in his will had left to her the household furniture, at which, as the witness expressed it, he was dumbfounded, and he told the doctor that his father “had promised a thousand dollars, that is the reason there was no claim, or anything made.” Both he and the doctor became excited, and witness said, “Well, if we can’t get it in a peaceful way we will let the Court decide it,” and he was told by the doctor, “Well, go ahead and sue.” The counsel for the appellee (plaintiff’ below) in his brief, in discussing this'exception, says: “It is impossible to see how this answer would in any way throw any light upon the issue in the case.” In this we agree with him, and if’for no other reason, being immaterial, it was improperly admitted. The fifth exception, is to the ruling of the Court in refusing to permit the husband of the plaintiff, upon cross-examination, to answer whether or not he, on behalf of his wife and himself, “had a conversation with D. Giering relative to Mr. Giering, who subsequently died, as to any bills or anything else.” We discover no serious objection to this question, unless, as claimed by the appellee, it is too general in its inquiry as to the subject matter of such conversation. The witness was not asked to give the conversation, but whether he had a conversation with the defendant.

The question was asked leading up to the further inquiry as to-its contents. It depended upon what was said in the conversation whether it was admissible, and when asked if he had a conversation with the defendant, the question should have disclosed in a general way the subject matter of the conversation about which the inquiry was made. We think the Court erred in its ruling upon the sixth exception. The witness Sarah B. Owens was asked “Did. he (the decedent) have a cow of his own that he got milk ²⁹⁹ from”?

The defense in this case is that the plaintiff did not furnish the decedent with board, but that he provided his own food, consisting, in part, of milk. It it be shown that he had a cow from which he was supplied with milk, such evidence would be admissible under that defense. Moreover, it would likewise be admissible tending to* show that although boarded by the appellee, he, in part, supplied the food consumed by him, and if shown to have been furnished by him without cost to the appellee, it was proper to be considered in arriving at the amount to be allowed the appellee for his board. The seventh and eighth exceptions were to the rulings of the Court in permitting Sarah E. Owens to testify as to the value of the board furnished by the appellee to the decedent; and the ninth, tenth and eleventh exceptions were to the Court’s rulings in permitting the witness Norwood to testify not only as to the value of the board, but likewise as to the value of the nursing said to have been rendered by the appellee to the defendant’s testator.

Both of these witnesses were called and examined as experts. Mrs. Owens was asked: “Having heard the testimony of Mr. and Mrs. Sauer in reference to the board bill of $480, from November, 1907, to April 1, 1911, what in your opinion would be a fair price for that board?” which she was permitted to answer, under objection, stating that she thought it was a fair price for said board. The record disclosed that about a year prior to 1910, while employed in Richmond by the Old Virginia Antique Eurniture Store, she aided her sister in the management of a small hotel in that city, by looking after the financial part only. When she returned to Baltimore she boarded with her sister and paid her five dollars a week, although there was really no “definite price”.

Her daughter boarded there, but she did not think her daughter paid anything. She had never kept a boarding house in Baltimore. When asked: “Are you or not familiar with boarding rates in the City of Baltimore; ³⁰⁰ have you boarded in the Oity of Baltimore” ? she replied: “I never boarded only with my sister.” She did not know the charges for board in Baltimore, although she had been told they were about like they were in Virginia. The witness Norwood testified that he was at that time boarding on Eutaw Avenue; that he boarded there with his invalid wife to the time of her death, in February, 1910; that during his married life he frequently employed a nurse for his wife.

He was then asked: “What do you think is a fair price for the board of Mr. Giering?” Thp defendant objected to the question, but the Court overruled the objection and the witness asked “May I answer it by telling my own experience ?” He was then asked: “From your experience as a boarder, boarding alone and with your wife, what do you ihink would be a fair price for the board of Mr. Giering in his lifetime?” This question was also objected to, but he was permitted to answer, giving the price in his judgment. He was then asked: “From your experience in employing a nurse in that neighborhood out there, and you have heard the testimony in Court, what do you think would be a fair price for the services rendered by Mrs. Sauer to Mr. Giering” ? This question, too, was objected fi>, but the objection was overruled and the witness was permitted to answer, stating, as he thought, a fair price therefor. The testimony of these witnesses objected to should not have been admitted.

Neither of them, in our opinion, was qualified to testify as an expert, and it is clear that the questions propounded to Norwood were -improper ones even though he had been competent to testify as an expert. The record contains three