Opinion
Decided June 8, 1926.
Appeal from Floyd Circuit Court.
JOSEPH D. HARKINS for appellant.
C.B. WHEELER for appellees.
Reversing.
This action grows out of the same explosion and fire which was the subject of the action of Prestonsburg Superior Oil Gas Company v. George W. Vance, etc., this day decided by this court. Appellee, Grace Wheeler, and her husband, C.B. Wheeler, occupied the upstairs apartment of the house destroyed by the fire. This action was begun to recover for the household and kitchen furniture, wearing apparel, and like articles of personal property belonging to her consumed by the fire. Her husband assigned to her his claim for such property as he owned that was destroyed. The opinion in the Vance case is referred to for the facts as to the origin of the fire, appellant's negligence, and the principles of law under the facts of the transaction applicable alike to each case.
C.B. Wheeler, the husband of appellee, and her attorney herein, was introduced as a witness for her and testified fully as to all the facts and circumstances with reference to the fire that destroyed the articles, the value of which was sought to be recovered herein. Appellant objected to all of his testimony and made repeated motions to have it excluded. At the conclusion of his testimony the trial court excluded all of it from the jury except that, relating to the value of the articles of personal property owned by him, the claim for which he had assigned to his wife. It is insisted that none of his evidence should have been permitted to go to the jury, and that the portion of it not withdrawn was incompetent. It is argued for appellee that though section 606, of our Civil Code of Practice, forbids a husband to testify for his wife, the testimony relative to the value of the personal property owned by him, claim for which he had assigned to her, falls within the exception that when a husband or wife has acted as agent for his or her consort, either of them may testify as to any matter connected with such agency. However, it does not appear that at the time appellee purchased the articles of property, his claim for which he assigned to his wife, he was acting as her agent. On the other hand, it appears that he was then acting for himself. Under the exception now in question it is only concerning a transaction in which the husband or wife, as the case may be, acting as agent for his or her consort, that either of them may testify as to any matter connected with such agency. Here, when Wheeler purchased the articles, he was not acting as the agent of his wife but was acting wholly for himself. All of his testimony Upon the trial hereof was incompetent and objection to it should have been sustained.
Witness, Greorge W. Vance, testified that on the day following the explosion one of the agents or servants of appellant told him that the explosion occurred when one of the workmen struck a match to test a joint. That statement was not part of the res gestae, and for the reasons and under the authorities set forth in the Vance opinion, this day handed down, that testimony should not have gone to the jury.
Appellant complains of the measure of damage instruction given to the jury herein. By it if they found for plaintiff the jury was directed to award to her the "reasonable value" of the property destroyed. The property owned by appellee which was destroyed by the fire consisted entirely of household and kitchen furniture, wearing apparel, and articles of the kind. Davis, Agent v. Rhodes, 206 Ky. 340, 266 S.W. 1091, deals at length with the question of measure of damages in cases of destruction of that character of personal property. Upon another trial the court will instruct the jury in accordance with the principles declared therein.
Appellant's complaint that the verdict was excessive will not be considered, since the judgment will be reversed for the errors indicated.
The judgment is reversed and the cause remanded for further proceedings consistent herewith.