Hartsell v. Davis

53 P.2d 261, 175 Okla. 446

• Court: Supreme Court of Oklahoma
• Decided: January 7, 1936
• Docket: No. 24016.
• Status: Published

Opinion

BUSBY, J.

This is an action ex contractu instituted in the district court of Jefferson county on September 15, 1931, by Ettie Davis, as plaintiff, against U. S. Hartsell and D. D. Hartsell, administrators of the estate of j. C. Hartsell, deceased. The plaintiff sought to recover a money judgment for services rendered to deceased during his lifetime pursuant to an agreement between herself and him.

On the trial of the ease the plaintiff was permitted to testify, over the objection of defendants to her competency as a witness, concerning transactions with the deceased and to facts which would tend to raise an implied contract between herself and the de_ ceased. The admission of such evidence over the defendants’ objection is prejudicial error by reason of the incompeteney of the witness under section 271, O. S. 1931.

This is a companion case to the case of U. S. Hartsell et al. v. H. L. Davis, 175 Okla. 446, 53 P. (2d) 261, and the questions herein involved are the same as those presented in that case, the plaintiff in this case being the wife of the plaintiff in that case.

Upon the authority of that case and Pancoast, Adm’r, et al. v. Eldridge, 157 Okla. 195, 11 P. (2d) 918, and in accord with the views therein announced, this case is reversed and remanded for a new trial, and the syllabus of the former case is adopted as the syllabus of this case.

McNEILL, C. J., OSBORN, Y. O. J., and WELCH, BAYLESS, CORN, and GIBSON, JJ., concur. RILEY and PHELPS, JJ., absent.