222 P. 590 | Utah | 1923
Tbe plaintiff brought this action in tbe district court of Cache county to recover judgment against the defendant as the administrator of the estate of Elizabeth "Westerberg, deceased, who was the mother of plaintiff, for services rendered by plaintiff for her mother during the latter years of her life. The services in question, according to plaintiff’s complaint, covered a period of time commencing in 1908 and continuing, with a temporary intermission of a few months, between December, 1915, and May, 1916, and terminating at the death of plaintiff’s mother in' 1922. The plaintiff also alleged the filing of her claim against the estate within due time, and its rejection by the administrator.
The defendant in his answer admitted the filing of the claim and its rejection as alleged, and denied generally that the services were rendered. In an affirmative statement in the answer, which is not material, the defendant described the nature or character of the alleged services. It seems that these averments were made for the purpose of showing that from the nature of the services it was not the intention of the mother that the plaintiff should be compensated therefor.
The case was tried to a jury, which found the issues in favor of the plaintiff, and allowed her compensation in the sum of $840. The defendant appeals. Defendant’s counsel during the trial interposed a motion for nonsuit, which the court denied. He now insists that the court erred in its ruling on said motion, and in that connection he now contends that the evidence is insufficient to sustain the verdict and judgment.
Counsel for the respective parties are hopelessly at variance respecting the state of the evidence. Each one states the evidence most favorable to his side of the controversy. While, so far as plaintiff’s case is concerned, her counsel is clearly within his rights in adopting that view of the evidence which is. most favorable to the verdict of the jury, defendant’s counsel, however, may not construe the evidence
Ordinarily, a jury of laymen is better qualified to pass upon the controversies arising out of family affairs than are lawyers and judges. As pointed out in the case of Mathias v. Tingey, 39 Utah, 561, 118 Pac. 781, 38 L. R. A. (N. S.) 749, when family affairs and the duties and legal obligations of parent and child must be considered in courts of justice, the findings of a jury of laymen should not be lightly interfered with. So far as the evidence in this case is concerned, therefore, we shall not pause to review it. We are, however, satisfied that there is sufficient evidence to support the verdict.
So far as the law applicable to cases like the one at bar is concerned, this court has had occasion to consider and to review many of the eases upon that subject in Mathias v. Tingey, supra. That case is cited and followed in a later case, namely, Wilkin v. O’Brien, 53 Utah, 1, 176 Pac. 853. We are still satisfied with the law as it is laid down in those cases and hence could subserve no good purpose, in attempting to add to anything that is there said or to make further review of the authorities.
The district court submitted the case to the jury upon the law as it is laid down in the two cases referred to. There are, however, several questions presented that are not governed or controlled by anything that is said in those two cases. We shall now proceed briefly to consider those questions.
The court charged the jury as follows:
“The court instructs the jury that the question as to whether or not other people except the plaintiff performed work or services for the deceased is immaterial, except for the purpose of showing that the plaintiff did not perform the services alleged, and you are not to consider that evidence for any other purpose.”
Defendants counsel excepted to the charge, and now insists that it is erroneous, in that it restricted the jury in their consideration of certain evidence for the purpose stated in the instruction and for no other purpose. We hardly
It is next contended that plaintiff’s claim is barred by our general statute of limitations except as to those services that were rendered within the four years immediately preceding the death of plaintiff’s mother, our statute barring actions upon express or implied oral agreements or accounts, where an action is not brought within four years after the conclusion of the services or the last item of an account. Plaintiff’s counsel, however, insists that this defense is not available to the defendant, for the reason that the statute of limitations was not pleaded in the answer. If this were an action between two living adversaries, then, according to the decisions of this court counsel’s contention would be sound. In view, however, that the action is against the administrator of a deceased person’s estate for a claim arising during the lifetime of the deceased, the general rule that the statute must be pleaded in order to be available does not apply. This court has at least in two eases expressly held that an administrator cannot waive the defense of the statute of limitations under our statute, and hence his failure to plead the same cannot avail the claimant. Fullerton v. Bailey, 17 Utah, 85, 53 Pac. 1020; Clayton v. Dinwoodey, 33 Utah, 251, 93 Pac. 723, 14 Ann. Cas. 926. Such is also the rule in California. Reay v. Heazelton, 128 Cal. 335, 60 Pac. 977, and eases there cited.
The question therefore is, Does not the statute of limitations bar plaintiff’s action for services rendered during the
The judgment is therefore affirmed, with costs.'