Opinion
Docket No. 67, Calendar No. 46,269.
Decided November 29, 1954.
Appeal from Oakland; Doty (Frank L.), J. Submitted October 12, 1954. (Docket No. 67, Calendar No. 46,269.) Decided November 29, 1954.
Florence Thomas filed her claim in the probate court against the estate of George J. Thomas for board and room of deceased. Claim denied and appeal taken to circuit court. Verdict and judgment of no cause of action. Plaintiff appeals. Affirmed.
Smith Smith ( Herbert W. Smith, of counsel), for plaintiff.
James D. Morrice and Hutson, Merritt Petermann ( J.W. Hutson, of counsel), for defendant estate.
Claimant Florence Thomas is the wife of Vernon Clair Thomas, a brother of George J. Thomas, deceased. Vernon Thomas and his wife held title as tenants by the entireties to their home on Candler avenue in the city of Highland Park.
George Thomas died January 5, 1952, and his widow, Helena E. Thomas, was named as administratrix with the will annexed. Florence Thomas filed a claim against the estate in the probate court of Oakland county for $2,080 for the rental of 2 rooms and board at the Thomas home at $20 per week for 104 weeks. This claim was disallowed. On appeal to the circuit court following a trial before a jury, a verdict of no cause of action was rendered and a judgment entered accordingly, from which claimant has appealed.
The questions raised have to do with claimed erroneous rulings on the admission of evidence, errors in the court's charge to the jury, and refusal to give certain requests to charge.
Vernon Thomas, the husband of claimant, was called as a witness. Following an objection to his testimony the trial judge ruled that he was an adverse party within the meaning of the so-called "dead man's" statute. CL 1948, § 617.65 (Stat Ann § 27.914).
The trial judge properly held that the husband was an adverse party with respect to rents and profits from property owned by the entireties during coverture, under the rule in Morrill v. Morrill, 138 Mich. 112 (110 Am St Rep 306, 4 Ann Cas 1100), and Dombrowski v. Gorecki, 291 Mich. 678. Claimant recognizes the rule of these cases, but argues that the contract in question was made by George Thomas with Florence Thomas, in the presence of her husband, Vernon Thomas, and that no objection was made by the husband. It is therefore insisted that the husband consented to the contract and that the situation is governed by Wisniewski v. Wisniewski's Estate, 254 Mich. 663, where the Court said (p 664):
"The rule that services of the wife in and about the home belong to the husband is not one beyond the power of the husband to waive. A husband may, by his consent, permit the wife to contract for special services to be rendered another in their home and to receive pay therefor."
That case involved a claim for the care and maintenance of a daughter of a deceased under an oral agreement. There (p 664):
"The evidence justified the jury in finding that the contract was made with plaintiff, not only by express consent of her husband to that effect, but, as well, in directing his father to make the contract with her."
Here, adequate proof of consent is lacking.
The claim in the instant case is not for services but for rents and board. The trial judge permitted claimant's husband to answer certain questions, but excluded answers to those pertaining to the claimed conversation between his wife and the deceased, on the basis that the witness had an interest in the income from the house.
The portions of the court's charge, which are claimed to be erroneous, are as follows:
"If there was an express contract, what did it mean? That is the second question for your consideration. What length of time was it to run? Was it to run during the rest of his lifetime, or was it to run only during the period that he occupied the rooms? That is a question of fact for your consideration. * * *
"Now then, as bearing upon the intent of the deceased at the time he entered into this contract, if you find there was an express contract, is the length of time he occupied it. Was it his intent at the time he entered into this contract that it should be rented during the period of his life, or just during the time that he occupied it? What was his intent at the time he entered into this contract? Was it, as I have said, for the rest of his life, or was it only during the period of his occupancy? That is a question of fact for your consideration. * * *
"Now, the burden of proof is upon the claimant in this case to prove that there was an express contract and the burden of proof, if you find there was an express contract, would show the length of time this contract was to run. The burden of proof means that the claimant must show by a fair preponderance of the testimony that she is right in her claim and she has established a contract and that she is entitled to pay for the rental of these 2 rooms in question."
Appellant argues that this charge was prejudicial because of the emphasis upon the fact that the testimony failed to show that the contract was for the natural life of the deceased, and absence of evidence of the time the contract was to run. A short answer to this is that the claim filed was for the rental of 2 rooms and board from December 25, 1949 (the date upon which it is claimed the contract was made) to January 5, 1952 (the date of death).
Furthermore, the charge in this case, like all others, must be taken in its entirety. So taken, it was not prejudicial and did conform to the testimony and the proofs required in such cases.
The remainder of the objections relate to the court's refusal to give the following requests:
"1st. That if the jury find from the evidence in this cause that George J. Thomas, the deceased, did agree with Florence Thomas, the claimant, on the 25th day of December, 1949 to rent of Florence Thomas 2 rooms in her home and pay to her $20 per week for the same, and that he took possession of said rooms by putting in said rooms his personal belongings or some of his personal belongings and that he keep possession of these rooms until his death, your verdict will be for the claimant, Florence Thomas, in the sum of $2,080.
"2d. If the jury find that the agreement was made by George Thomas to rent these rooms as above mentioned, it will not be necessary for him to personally occupy these rooms, as he would be holding possession as long as some of his personal belongings were in these rooms.
"I charge you that the court takes judicial notice that the 25th day of December, 1949 was on Sunday. Hoard v. Stone, 58 Mich. 578."
The first and second requests were given, in substance, in the court's charge to the jury. The claim filed was based upon an express contract. If the court had given the third request to charge, i.e., that the 25th day of December, 1949, fell on Sunday, such a charge would have established the invalidity of the contract. The court's failure to give the charge requested was not detrimental to the claimant. An examination of the testimony and the charge in its entirety discloses no reversible error.
The judgment entered upon the jury's verdict is affirmed, with costs to the estate.
BUTZEL, C.J., and CARR, SHARPE, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred.