#### Etta A. Gerdes, Appellee, v. Samuel Niemeyer, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Witnesses, § 41 * —when one spouse competent witness for other. Testimony of the plaintiff’s husband in her behalf, held competent in an action to recover for board, lodging and washing.

2. Witnesses, § 49*—when objection to competency of spouse waived. One who thoroughly cross-examines the plaintiff’s husband when a witness in her behalf, without objecting to his competency, cannot raise such question on appeal.

3. Instructions, § 151*—refusal of instructions embodied in those given. The refusal of requested instructions is not erroneous when covered by other requested instructions actually given.

Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.

Heard in this court at the October term, 1914.

Affirmed.

Opinion filed April 16, 1915.

Statement of the Case.

Action by Etta A. Gerdes, a married woman, against Samuel Niemeyer for board, lodging and washing, in which she recovered judgment for eighty-one dollars, from which the defendant appeals.

The husband of the appellee testified that for Ms wife he presented the bill for board to appellant, and that appellant refused to pay it. He testified without objection to Ms competency, and was thoroughly cross-examined by appellant.

Frank J. Wilkins, for appellant.

W. R. Curran, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Scholfield

delivered the opinion of the court.

*5754. Husband and wife, § 202 * —when wife may recover for services. A married woman may recover for board, lodging and washing for the defendant, although he may not be aware that her husband consented to the making of the contract.

5. Evidence, § 461*—when weight of conflicting evidence for jury. When evidence is conflicting its weight is to be determined by the jury.

6. Appeal and ebbob, § 1411*—when verdict on conflicting evidence not disturbed. A verdict will not be set aside by the Appellate Court where the testimony is conflicting, although the finding is against the weight of the evidence, unless it appears that the jury acted under passion or prejudice.

7. New tbial, § 67*—when not granted for evidence not discovered subsequent to trial. A new trial will not be granted for newly-discovered evidence which does not appear to have been discovered since the trial.

8. New tbial, § 68*—when not granted for newly-discovered cumulative evidence. A new trial will not be granted for newly-discovered evidence which is merely cumulative.

9. Husband and wife, § 202*—when evidence sufficient to sustain verdict for wife for labor. A judgment in favor of a married woman for board, lodging and washing for the defendant, held sustained by the evidence. . '