175 Ky. 6 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
This is the second appeal in this case. The opinion upon the first appeal may be found in 163' Ky. 796. The case upon the first trial was tried at the same time with the case of Kitty Fonts against E. J. Benge’s Administrator, as the cases involved substantially the same facts. The plaintiffs in each of the cases sought a recovery against the personal representative of E. J. Benge, deceased, for services rendered the intestate under an alleged contract with the intestate to the effect that in consideration of the services rendered her by the plaintiffs, that she would compénsate them by a testamentary provision for their benefit. The will, she promised to make toward the end of her life, but she died without having made a last will and testament, and without having made in anywise any provision for the compensation of appellee for the services. The first trial resulted in a judgment in favor of the appellee, Ann Creech, for the sum of seven thousand five hundred dollars. Upon an appeal to this court the judgment was reversed and the cause remanded for a separate trial and for proceedings consistent with the opinion. Upon the second trial of the case a verdict was returned and a judgment rendered in favor of appellee for the sum of four thousand dollars. The appellant seeks a reversal of this judgment upon the following grounds:
First: The amount allowed by the jury is excessive.
Second: The verdict is contrary to the law given by ■the court, and is contrary to the evidence and is not supported by it.
Third: The court misinstructed the jury and refused to properly instruct it.
Fourth:. The court erred in the admission and rejecr tion of testimony.
Sixth: Upon the whole case, the appellant has not had a fair trial.
Since the former appeal, in this ease, and of the case of Kitty Fouts against E..J. Benge’s Administrator, the last named case has undergone another trial in the circuit court and was brought by appeal the second time to this court, and the opinion in that case may be found in 174 Ky. 654. The facts of this case may be gathered in the opinion on the former appeal of Benge’s Administrator against Fouts, and Benge’s Administrator v. Creech, 163 Ky. 796, and the opinion in the case of Benge’s Administrator against Fouts, 174 Ky. 654, and it is unnecessary to reiterate them here.
(a.) The contention that the evidence was not sufficient to prove the existence of a contract between appellee and intestate, whereby it was agreed that in consideration of the rendition of the services sued for by appellee for intestate, intestate would pay her therefor by a testamentary provision for her benefit, is substantially the same as was offered to prove the making of such contract in Benge’s Administrator v. Fouts, supra, and in Benge’s-Administrator v. Creech, supra, wherein the facts are considered, and in the first named case it was held that the evidence was sufficient to establish the contract, if true, and its truth was a question for the jury.
(b.) The contention that the verdict of the jury is contrary to the law given by the court is based, as is gathered from the briefs, upon the argument that the instructions limited the jury to finding for appellee such a sum as would reasonably compensate her for the services rendered by her for intestate, and that instead of so doing the jury allowed her a much larger sum. This argument relates to the insistence that the damages allowed were excessive and will be considered when that ground of reversal is considered.
(c.) The instructions in a civil case should be confined to the issues made in the pleadings and such as are supported by any evidence. A defense should not be submitted by an instruction when notice is not given by the answer that such a defense will be relied upon. Mathis v. Bank of Taylorsville, 136 Ky. 634; Owensboro Wagon Co. v. Boling, 32 R. 816; Bauer Cooperage Co. v. Shelton, 114 S. W. 257; Louisville Railway Co. v. Park, 96 Ky. 580; C. & O. Ry. Co. v. Vaughn, 115 S. W. 217. In the instant case, th© petition and amended petition set out the epn
(d.) Witnesses were offered by appellee, who gave testimony to the effect that on different occasions the intestate made declarations to the effect that she was going to make a will and to give her property to the appellee and the other two women, who had worked for her and helped her to make the property, and had nursed her in her sickness. It was, also, proven that intestate had said that she intended to give her farm to appellee, and the witness was permitted to state what, in his opinion, was its value at the time the declaration was made. The proof of these declarations was objected to, and appellant complains of it as prejudicial. These declarations' were competent as tending to prove that the services of appellee were rendered under a promise by intestate that they were to be paid for by a provision in her will, and the further fact that intestate recognized the obli
(e.) The appellant offered to prove the same declarations of intestate, of her intentions, in regard to the disposition of her property, though not made, however, in the presence or hearing of appellee, as were offered in the trial of the action of Fouts v. Benge’s Administrator, and which were considered upon the appeal of that case. The trial court rejected the proof of the declarations and its action was approved in Benge’s Administrator v. Fouts, 174 Ky. 654, supra, and the ruling is adhered to for the reasons therein expressed.
(f.) The jury by its verdict found the value of appellee’s services for the nearly nineteen years she lived with and served the intestate to be thirty-three hundred dollars. They allowed nothing for the remainder of the service performed by her, except for the nursing of intestate during the years 1909, 1910, and. 1911, at the home of appellee. For the latter item, they allowed her the sum of seven hundred dollars. The allowance in this instance is complained of as being excessive, as well as the other. In regard to the latter item, the proof shows that at intestate’s request she took intestate to her home where she remained, at one ’time, for two hundred and thirty-one days and at another for one hundred and eighty-nine days, at the end of which she died. The evidence shows that during these periods she was very sick and suffered and required and received the constant attention of appellee both day and night, and that
The judgment is, therefore, affirmed.