Smith v. Allen, 181 N.C. 56 (1921)

March 9, 1921 · Supreme Court of North Carolina

181 N.C. 56

DULCEDO SMITH v. JOSEPH J. ALLEN, Admr.

(Filed 9 March, 1921.)

1. Limitation of Actions — Pleadings—Appeal and Error.

In an action against the administrator of the deceased where there are . two separate causes of action set out, one to recover the value of services rendered the intestate by the plaintiff, and the other to recover taxes paid for him by the plaintiff, it is necessary that the defendant plead the statute of limitations as to the second cause of action in order to avail himself of it as a bar to the plaintiff’s recovery thereon.

2. Limitation of Actions — Contracts—Wills.

The statute of limitations does not begin to run until the death of the intestate on his contract with the plaintiff, that if plaintiff performed certain services for him during his life he would compensate him therefor in his will.

3. Appeal and Error — Harmless Error — Evidence—Deceased Persons— Statutes.

The admission of evidence concerning transactions or communications with deceased persons, forbidden by our statute, is, at least, harmless error when both parties to the action have testified to them, without objection, and the objection upon which the exception is based, was subsequently taken.

Appeal from Lyon, J., at tbe September Term, 1920, of 'Wa.RREN.

Tbis is an action to recover for personal services rendered by tbe plaintiff to tbe intestate of tbe defendant, and certain taxes paid by tbe plaintiff.

There was evidence tending to prove that plaintiff, a nepbew of defendant’s intestate, lived alone with tbe intestate for about fifteen years, until intestate’s death, 25 July, 1919, at tbe advanced age of 89 years; that for tbe last seven years of tbis time tbe intestate was bedridden; and for tbe last three years be was totally helpless, having no control of his body, bis limbs, bis bladder, or bis bowels; that plaintiff waited'on him, cleaned him, made bis fires, sat up with him, changed bis bed, brought bis meals, and attended to bis business. Tbe intestate was in mature life, a man of business, but came back to bis farm near Manson when past 70, and told plaintiff that if plaintiff would stay there with him and take care of him and attend to bis business as long as be lived be would give plaintiff tbe place, about 500 acres of land, uncultivated, growing up in pines. Deceased also stated several times tbat be bad made a will giving plaintiff tbe place. It was shown tbat be refused to pay tbe taxes, saying it was plaintiff’s, and plaintiff must pay tbem; and tbat plaintiff paid tbe taxes from 1906 to bis uncle’s death. "When people would ask leave to bunt or to buy trees, deceased would say, “See Dulce; it is bis”; or words to tbat effect.

After bis death no will was found, and this action was brought to recover tbe value of plaintiff’s services.

Tbe timber bn tbe land was sold in tbe spring of 1920 by tbe heirs for $37,000. Tbe land itself was worth six or seven thousand more, and deceased bad in bank $3,000, which was not diminished during bis long illness.

Jarvis Allen, a colored man, born on tbe place, helped to nurse deceased, and being refused payment, sued for $2,000, and was paid $1,250 without a trial.

Plaintiff, a dentist, a man of education, demanded $5 per day for bis services for tbe seven years during which tbe deceased was helpless, ■alleging tbe contract, tbe performance thereof by him, and tbe breach thereof by tbe death of tbe intestate without payment or provision for plaintiff.

Plaintiff also added a cause of action for tbe taxes paid by him, and interest thereon.

Tbe defendant denied liability, and pleaded tbe statute as to all but three years of tbe services; but did not plead tbe statute against tbe •claim for taxes.

Tbe jury returned tbe following verdict:

“1. Did O. G. E. Smith agree with plaintiff tbat if tbe plaintiff would remain with him at bis home and care for him and look after bis business, and tbat if be, tbe said plaintiff, would do so, be, tbe said O. G. E. Smith, would at bis death compensate him for bis services and attentions? Answer: ‘Yes.’

“2. Did tbe plaintiff remain with tbe said O. G. E. Smith at bis home ■•and care for him and look after bis business, as alleged in tbe complaint ? Answer: ‘Yes.’

“3. Did tbe said O. G. E. Smith, at bis death, compensate tbe plaintiff ■for tbe services and attentions of tbe said plaintiff to him which were rendered as alleged in tbe complaint? 'Answer: ‘No.’

“4. What sum, if any, is the plaintiff entitled to recover for such attention and service? Answer: $12,783.75.”

“5. What sum, if any, is the plaintiff entitled to recover for tbe taxes paid by tbe plaintiff for the said O. G. E. Smith? Answer: ‘$574.66.’ ”

Judgment was entered upon the verdict in favor of tbe plaintiff, and “the defendant appealed, assigning tbe following errors:

“1. Exception is to the court permitting plaintiff to testify wbat be did for tbe intestate.

“2. Exception is to testimony as to taxes paid for deceased for more than three years before his death.

“3. Exception is to the charge of the court on the 4th issue refusing to hold that the claim of plaintiff is barred as to all arising more than three years before intestate’s death.

“4. Exception is to refusal to charge that all taxes paid more than three years before intestate’s death are barred of recovery by the statute of' limitations.

“5 and 6. Exceptions to the verdict and judgment, respectively.”

T. T. Hides & Son, Daniel & Daniel, B. B. Williams, and W. P. Harvey for plaintiff.

Tasker Polk, William H. and Thomas W. Ruffin, and A. G. and J. P.. ZoTlicoffer for defendant.

AlleN, J.

The second, third, and fourth exceptions may be considered together, and the fifth and sixth are purely formal.

The second and fourth are to the refusal to hold that the claim for taxes paid more than three years prior to the death of the intestate is barred by the statute of limitations, and it is a complete answer to these exceptions that the claim for taxes was alleged as a separate and distinct cause of action and that the defendant did not plead the statute of limitations to this claim.

The third exception is answered by the finding of the jury upon the first issue, it being well settled in this State, “That where services are rendered upon an agreement that compensation is to be made at death, that the amount does not become due until death, and that the statute of' limitations does not begin until that time.” Helsabeck v. Doub, 167 N. C., 206.

The evidence is ample to sustain this finding, and there is no exception by the defendant to the contrary.

The defendant did not ask the court to hold, nor did he request a prayer for instruction, that there was no evidence to support the finding upon any of the issues.

The first exception is to permitting the plaintiff to testify that he would have to be up with intestate “at night, every night, anywhere from two to ten times, to move him, lift him, and change his position. He could not move himself after 1916. Nobody stayed with him at night but me. On August, 1912, to July, 1919, I could have easily earned from $8 to $10 per day. I paid taxes on that land from 1906 until the old man died.”

This objection to evidence was upon tbe ground that the plaintiff was a party and that it involved a transaction with the deceased.

It will be seen, however, that the plaintiff had already testified without objection to all of those facts and that afterwards on cross-examination the defendant examined him minutely covering every phase of the answer objected to, and further that the administrator was examined as a witness and testified as to these transactions.

If, therefore, the objection could have been sustained, in the first instance, the evidence is harmless because the same facts were testified to by the same witness without objection and the administrator having testified as to the transactions the plaintiff would be permitted to do so.

We have examined the record carefully and it appears to us that the verdict is right and that the claim of the plaintiff is meritorious, and has been established in accordance with law.

No error.