Cincinnati Belote, Appellant, vs. O'Brian's Administrator, Appellee, 20 Fla. 126

Mr. Justice VanValkbnburgh delivered the opinion of the court. This was an action brought by Cincinnati Belote in the Circuit Court of Duval county against James S. Bell, administrator of the estate of John Mi O’Brian, for work done and material for the same furnished to the said O’Brian in his lifetime, to the amount of six hundred and six dollars. Attached to the declaration was a bill of particulars in the shape of an account against the deceased, in the following form: ESTATE OE JOHN M. O'BRIAN, TO ,T. S. BELL, ADMINISTRATOR. To Mrs, G. Belote : DR. 1879.

To three bottles of medicine for cough prepared by me each week from June 1st, 1879, to September 12, 1881, (118 weeks) at $1.00 per bottle................................. $854.00 To one bottle of bitters each week from June 1st, 1879, to September 12, 1881, (118 weeks) at 50 cents per bottle......... 59.00 To one plaster for chest each week from June 1st, 1879, to September 12, 1881, (1.18 weeks) at 50 cents per plaster ........ 59.00 To one bottle of liniment each week from June 1st, 1879, to September 12, 1881, (118 weeks) at 50 cents per bottle......... 59.00 To making and repairing- garments during the time, from June 1st, 1879, to September 12th, 1881.......................... 25.00 Total................................................... $606.00 This bill of particulars has attached to it the affidavit of C.

Belote made on the 12th day of July, 1882, to the effect that “ the above account against the estate of John M. O’Brian is due and remains unpaid; that the services charged for in this aecouut were rendered to the deceased at his request, and that the medicinesprepared for him and charged against his estate were delivered to and used by the deceased during each and every week between the time from Juno 1st, 1879, to September 12th, 1881.” The defendant plead that he never was indebted as alleged in the declaration. Issue was duly joined, and the cause was referred to T. A. McDonell, Esq., to hear and determine.

Oil the 23d December, 1882, the cause came on lor trial before the referee, and the plaintiff was introduced in her own behalf and testified as follows: “ I make medicine for my family similar to that furnished to O’Brian in his lifetime. The cough medicine that I make is of two kinds. One kind costs eighty-three cents per bottle, the other $1 per bottle. The cost of the ingredients of the liniment was fifty cents per bottle; the cost of the ingredients of the strengthening plaster was fifty cents.

The medicines, the cost of which is above stated, are similar to those furnished to O’Brian in his lifetime, and cost, the same and are composed of the same ingredients. The sewing for an ordinary man I should charge for fifteen or twenty dollars a year, that is making and repairing garments.” On her cross-examination, she said : “ In one bottle of the cough mixture the following are the ingredients : Icelen moss, cost 5 ; licorice, 10 ; gum arabio, 10; anise seed, 10; honey, 25; rum, 13; paregoric, 10.

The other kind of cough medicine, the ingredients are as follows: Rum, 50; honey, 25; balm of gilead buds, 10 ; paregoric, 10 ; rock candy, 5. The liniment is composed of the following ingredients : Sweet oil, 15 ; camphor 10 ; turpentine, 5 ; laudanum, 10 ; hartshorn, 10.

The strengthening p’aster is composed of roots dug by myself from the ground.” On the 25th day of January, and after the foregoing evidence had been taken, the defendant, by his attorney, moved the court to strike out such testimony of the plaintiff, for the reason that it was improperly admitted, and*for the reason that it was incompetent and illegal. The referee granted ’the motion, and struck out the testimony. The attorney for the plaintiff duly excepted to such ruling of the referee.

Charles Belote, a son of the plaintiff, was then sworn and testified substantially as follows: I know the plaintiff and knew O’Brian in his lifetime. Defendant was always complaining of a cough; I know the plaintiff' made cough medicine, liniment and strengthening plasters for him. She commenced to make these medicines for him in June, 1879, and continued to make them until the time of his death in 1881. Each week three bottles of cough medicine and one strengthening plaster was furnished to John M. O’Brian, sometimes one bottle and sometimes two bottles of liniment each week.

During same time plaintiff did the sewing and mending for O’Brian ; O’Brian usually came after the medicine, and when he did not come, I carried it to him ; T also carried him garments made and repaired by the plaintiff; these things were not paid for by the deceased before his death, nor since by this administrator; the Sunday before he died he said to me, that the medicines wore better than any doctor’s, and she should be well paid for them ; I lived in the house with my mother during the time; she did not render any hill to O’Brian in his lifetime ; she bought the ingredients .at the drug store; don’t know what she charged for the medicines or the plasters ; I carried the medicine to O’Brian about as often as he came for it; the medicines were always furnished in bottles holding about a pint, always full.

Robert Grant, a witness for defendant, testified that he knew O’Brian for two years before his death; in the latter parr, of'sickness he was with him constantly ; he was in the house with him all the time, and the only medicine he took was.tar water, and the application of the pitch plaster ; for more than six months before his death the witness began getting pitch plasters for him; witness never knew of plaintiff furnishing medicine and never saw Charles Belote come to the house; witness was there, about daily for six mouths before O’Brian’s death, and if Charles Belote had brought medicine he would have been likely to have seen him; witness usually gave O’Brian his medicine, and if he had been taking any other kind he certainly would have known it.

Mrs. E. A. Rhame testified that she knew O’Brian since 1879 ; he came to Florida for his health, troubled with bis lungs; he had an aversion to doctors, and wanted to depend upon the climate; the last year of his life she saw him frequently, and for three months before his death saw him two, three and four times a week; two or three weeks before his death, while taking dinner, his cough troubled him ; she asked why he did not take some syrup, or something for his cough ; he answered it would do him no good ; Mr. Arnold furnished him with the tar water, which he took; never heard him speak about Mrs.

Belote’s furnishing medicine. Mrs. G-. W. Arnold testified : I knew O’Brian since January, 1879 ; he had lung trouble and came for his health ; he boai’ded with me about two months; he then left and went to his own house about a quarter of a mile from mine ; I then saw him frequently, he came in and out quite often ; he never had a doctor to attend him; had no faith in them, and preferred me to fix and prepare little simples for him ; he told me that Mrs.

Belote had offered to furnish him with medicines which would do him good, but he was satisfied all she wanted was his money, and had no faith in her medicine, and did not want any of it; he did not take anything for his lungs, as he told me, and not until the third year did ho begin any treatment, for his lungs, by taking tar •watpr I furnished him, and using pitch plasters T also furnished him ; I know that during six months and longer before his death he took nothing but tar water and used tlie pitch plasters ; he told me he was afraid to take the medicines from Mrs.

Belote, and was very suspicious of them because she was in with the Ilayes who were his enemies,and he was afraid she would poison him. Before .Judge Baker, in an examination, I heard the plaintiff say “ long tor a spell he paid me for the medicines I furnished him, but. after we were engaged to be married, which was in April, I made no charge; at the time of his death there were no empty bottles about in which any kind of medicine had been furnished.” The referee found for the defendant and the plaintiff made a motion for a new trial which was denied, and then brought his appeal to this court.

The errors assigned.are as follows: 1. In allowing the motion to strike out the testimony of Cincinnati Belote, .said motion coming after said testimony vvas received without objection. 2. In striking out said testimony. 3. The verdict was contrary to the evidence. 4. The verdict was contrary to the law. 5. In denying the motion for a new trial.

Section 1 of

Chapter 1983, Laws, reads as follows: u No person offered as a witness in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto; Provided, however, that no party to such action or proceeding, nor auy person interested in the event thereof, nor any person from, through, or under whom such party or interested person derives any interest or title by assignment or otherwise; shall be examined as a witness in regard to any transaction or communication between such witnesses and the person at the time of such examination deceased, insane, or lunatic against the executor, administrator, heir at law, next of kin, assignee, legatee. devisee, or survivor of such deceased person,” &e.

This action was brought by Mrs. Belote against the administrator of O’Brian. Attached to the declaration was a bill of the particulars of her demand amounting to $606 for medicine furnished and labor done. This bill of particulars is in no sense evidence, nor in any event can it be referred to, to supply any deficiency in the proof on the part of the plaintiff. Its only object is to inform the defendant ot the nature and character of the cause of action. The son of the plaintiff, was a witness upon the part of the plaintiff'.

He proves the delivery of medicine, liniment and strengthening plasters to O’Brian, made and furnished by his mother from June 1879, to his death in 1881. He also proves that the plaintiff did the sewing and mending for the deceased during the same time. He says, each week three bottles of cough medicine and one strengthening plaster, sometimes one bottle and sometimes two bottles of liuimei^f; each week, was furnished to the deceased O’Brian.

That these things were not paid for-by O’Brian during his life, nor by the administrator since his death ; that the deceased said before he died that his mother should be well paid for them. The value ot the medicine, or the work in sewing for the deceased were not proved by this witness. To prove such value, and in order to enable her to recover a judgment; the plaintiff’s evidence seemed to be necessary. Without it, the amount in which the estate of O’Brian was indebted to her could not be arrived at by the referee.

She testifies in her own behalf that she makes medicine for her own family, similar to that furnished to O’Brian in his lifetime, and then testifies as to the cost of the medicines, itemizing the expense of each ingredient of which they were compounded. She also testifies as to the value of .services per year, in making and repairing garments for “ an ordinary man.” These medicines and the making and repairing of such garments, is the cause of action specifically set out in her bill of particulars. There is no other evidence of the value of the services, or the worth of the medicines.

Upon motion, this evidence of plaintiff was stricken out by the referee, as being in conflict with the law above cited.

Chapter 1983, Laws 1874. We cannot see that it was so in conflict with that law. She lias not testified in regard to any transaction or communication ” between such witness and the deceased O’Brian.

Her evidence was only to the value of certain medicines, which she made for her own family, the like of which was furnished (as proved by her son) to O’Brian in his lifetime, and what it was worth to make and repair garments per year. .The word “transaction” means “the doing or performing any business, the management of-an affair, the adjustment of a dispute between parties by mutual agreement.” Certainly, she testified to no such thing, when shc> only gave the value of certain medicines, compounded of drugs, and the worth of services performed in making and mending garments.

There was no “ communication ” between her and the deceased referred to in her evidence. The value of the articles furnished and the labor performed were wholly independent of any personal transactions or communications between the witness and the deceased person. The effect of the law, or rather the exception to the general rule as prescribed thereby, is not. to render a witness incompetent generally, hut. only incompetent to testify upon certain specific subjects, namely: “transactions and communications ’" had with the deceased.

Any party may testify to any fact pertinent to the issue, if. it does not come within the exception as provided in the statute. This point has been adjudicated and settled in this State. In Robinson vs. Dibble’s Admr’s, 17 Fla., 457, this court says : “ The purpose of the statute was to enlarge, not to restrict the competency of parties as witnesses. It made parties witnesses-in-chief in the causes except as to certain matters therein mentioned.” See also Raulorson vs. Rockner’s Adm’r, 17 Fla., 809; Sanderson’s Adm’rs vs. Sanderson, Ib., 820. We think the referee erred in striking out the evidence of Mrs. Eelote.

As to the question, whether with her evidence, taken in connection with that of her son, and with that of the witnesses for the defendant .she would be entitled to a judgment, we have nothing to say. Her evidence should have been considered by the referee, and he was the proper judge of the facts, as well as the credibility of the witnesses. In the view we have taken of this case it is not necessary to examine the other alleged errors. The judgment is reversed and a new trial ordered.