Humphrey v. Boschung

ON REHEARING

It has been brought to our attention upon application for rehearing that we referred in our original opinion to the date of May 19, 1959, as being on a Sunday. The undisputed testimony as to the alleged express •contract for payment for services rendered Morrow by Katie M. Sharp was that it oc•curred on a Sunday afternoon in May, 1959. According to appellees, May 19, 1959 was not a Sunday. We therefore correct •our original opinion by striking therefrom -the figure 19 wherever it may appear after the word May, in reference to the date of the Sunday afternoon agreement. The date of May 19, 1959, was inadvertent and was confused with the date of May 19, 1962, which often appeared in the transcript as the date on which Morrow left the home of Mrs. Sharp.

We find we also used the word “count” in our original opinion when we were in fact, referring to replication. The theories of recovery, upon which the case was tried, were advanced by claimants’ replications rather than by formal counts in a complaint. We correct our opinion by substitution of the word replication for count. This correction has no effect upon the meaning of the opinion.

Appellees charge our original opinion with failure to follow the settled appellate practice of viewing evidence in a light most favorable to plaintiff, and allowing all reasonable inferences therefrom to support a jury verdict. Appellees insist that the contract, admittedly entered into on Sunday, could have been determined by the jury to be valid because of the presence of evidence bringing it within exceptions to the invalidity of a Sunday contract.

In response to appellees’ charge, we thought it plain in our opinion, that the reversal was not based upon insufficient evidence to support the jury’s verdict, but upon erroneous instructions of the trial court. The erroneous charges requiring reversal affirmatively assumed there was evidence of a valid express contract. The only express contract in evidence was entered into on a Sunday, and thus was by statute void, unless coming within the exceptions to the statute. The charges given ignored the application of the statute to the evidence, and did not present to the jury determination of whether the evidence presented an exception under the statute. In any event, it is our opinion that there was no evidence of a moral or physical necessity giving rise to the Sunday contract which would bring it within the exceptions in the statute.

Appellees contend in their Replication J that appellant is estopped from pleading *319 any statute of limitation as to the claim because appellant, while serving as administrator in another estate had made an affidavit that Mrs. Sharp was incompetent in January 1964. Appellees insist that appellant joined issue on Replication J, and from the evidence, the jury could have determined that Mrs. Sharp was incompetent from as early as 1959, and that appellant was estopped from claiming benefit of any statute of limitation.

We are frankly unable to follow this argument. We can see no estoppel, since there were different parties involved in the prior administration referred to, than in the instant case. What appellant may have stated or pleaded in another case, while acting in an entirely different capacity, and applying to different issues, would be no estoppel in this case. In any case, estoppel is a preclusion in law, and its existence is a matter of law, not an issue for the jury.

Opinion extended, application for rehearing overruled.