119 Ky. 103 | Ky. Ct. App. | 1904
Opinion or the court by
Reversing.
This action was instituted in the Grant circuit court by the■ appellee, Elijah A. Green, to recover from appellant, the executor of William P. Green, a claim of $950, alleged to be due him from the decedent’s estate for work performed by him at the special instance and request of the decedent within two or three years next before his death, and which had never been paid. The appellee was the nephew of William P. Green, and lived some two miles from the residence of the latter. The uncle was an old man, greatly afflicted; and practically helpless. The services of appellee consisted in feeding the decedent’s stock, looking after his farm, and other menial work, but particularly in nursing and caring for him while sick. He sat up with him at night, gave him injections so that his bowels would properly perform the functions of nature, carried out and emptied the slops-, and-performed other services for the- sick man of a nauseating character. The answer placed in issue the material allegations of the petition, and alleged affirmatively that the services rendered by appellee were gratuitous, being such as a relative and neighbor would naturally render without expectation or hope of reward. This was denied by a reply, thus completing the issues. A trial by jury resulted in a verdict and judgment in favor of the plaintiff (appellee) for the sum of $600. Of this appellant now complains.
The objection of appellant that the claim of appellee was not properly proved as required by section’3870; Ky. St.,-is
The. appellee was-.unquestionably incompetent to testify as a witness in his own behalf against the estate of the decedent, but he was allowed to do so without objection on the part of appellant, and the fact that this was- permitted by the court was not assigned as error in support of the motion for .a new trial. Therefore the objection to the court’s ruling on-this subject can not avail appellant on appeal.
It is urged that the witnesses who testified to the value of appellee’s services did not. qualify themselves- as experts to depose on that subject. These were .the neighbors and friends of both the appellee and! his deceased uncle. They all professed to know the nature of the services rendered, qnd their value, and, while they were not professional nurses, we think they were competent, under the circumstances, to express an opinion as to what the services were reasonably wo.rth.
At the close of the testimony, the court instructed the jury as follows: “If you believe from the-’ evidence that the. plaintiff rendered the decedent any services,. and that said services were accepted by the decedent, and that the plaintiff has not been paid for said services, then you will find for gjqid plaintiff such sum as you believe from the. evidence in, .this case would.be a just and fair compensation to plaintiff, for the services which you find he rendered the decedent, not. ejcqeeding $750, the amount claimed in the -petition.” Th,is .instruction., does not correctly state the rule of law applicable to thi,s case. Galloway’s Adm’r v. Galloway, 70 S, W., ,48, 24 Ky. Law Rep., 857, was,, in principle, similar to the one at bar. The claimant was the ni§ce of the decedent,
'“No. 2b. Second, upon the other hand, although the jury may believe from the evidence that labor and services were performed by the plaintiff for said Nelson Galloway of the character described in her petition, and at his instance and request; and if they further believe from the evidence that the same were performed without any intention at the time upon her part to charge her uncle therefor, or intention 6r agreement on his part to pay therefor, the law will presume iliat such labor or services were performed gratuitously, and in that event the jury should find for defendant.”' Upon the return of the case the above instructions should, in legal substance, be given as the law upon the next trial. To the same effect are Reynolds v. Reynolds, 18 S. W., 517. 13 Ky. Law Rep., 793; Lowe’s Adm’r v. Webster, 43 S. W., 217, 19 Ky. Law Rep., 1208; Baxter’s Adm’r v. Knox, 44 S. W., 972, 19 Ky. Law Rep., 1973; and Frailey’s Adm’r v. Thompson, 49 S. W., 13, 20 Ky. Law Rep., 1179.
It is' insisted by counsel for appellee that, because appellant did not present instructions to the court, he can not he heard to complain of the instruction given, although it may be erroneous. This is not the rule. In City of Louisville v. Keher, 117 Ky., 841, 79 S. W., 270, 25 Ky. Law Rep., 2003, it is said: “The rule is"<;thát only errors prejudicial to the 'substantial' rights of the party' complaining' are grounds of reversal. Iff civil cases' the circuit court is not required to give the whole law of the case in his instruction, but it is
The court struck from appellee’s claim an item of $200, because he could not itemize it with sufficient certainty and definiteness. From this ruling of the court appellee has prosecuted a cross appeal. This claim is. rather vague- and indefinite, but, considering the fact that thé parties were farmers, and unused to the keeping of books or accounts, we think it should have been submitted to the jury.
.For the reasons indicated, the judgment is reversed on the original and cross appeals for further proceedings consistent herewith. -