48 Ind. App. 658 | Ind. Ct. App. | 1911
Appellee filed a verified claim in two paragraphs against the estate of Peter Hedrick. The first paragraph was a general claim for services rendered in doing house and farm work, and in nursing and caring for decedent and his wife, and for general services from March, 1902, to March, 1909. The second paragraph alleged a special contract made between decedent, in his lifetime, and appellee and her parents, by the terms of which decedent agreed that if appellee would come and work for him in his family, and take care of himself and his wife, he would pay her at the rate of $1.50 a week for her services, and, in case she stayed with him and his wife, and cared for them as long as they lived, he would give her, at his death, a certain forty acres of land; that appellee fully performed her part of the agreement, and that decedent died without having made a will, or without leaving to appellee said forty acres of land in accordance with his agreement; that the services rendered by appellee were reasonably worth $4,000; that the said sum of $1.50 a week had been paid. Defendant demurred separately to each paragraph of the complaint, which demurrers were overruled, and these rulings are assigned as error. But as appellant has failed in his brief to discuss the sufficiency of either paragraph, or to cite any authority bearing thereon, these errors will be considered as waived.
It is contended by appellant that the lower court should have granted a new trial, on the ground that the verdict is not supported by the evidence, which is quite voluminous. Appellee introduced testimony tending to prove that there was a contract entered into between her and her parents on
The jury trying the case was the sole judge of the weight of the evidence and the credibility of the witnesses. The questions of fact involved in this case were submitted to the jury, and it returned a verdict in favor of the claimant. There was evidence upon every question material to a recov
This instruction being erroneous, the judgment in this case must be reversed, unless it clearly appears from the whole record that the error was harmless. There was no evidence introduced tending to show that any of the services rendered by appellee were gratuitous. The evidence, without dispute, shows that appellee was to receive $1.50 a week, and that this amount had been paid. Appellee’s claim for compensation in excess of that amount is based upon the ground that the amount stipulated to be paid weekly was not intended as full payment, and that she rendered the services under an express agreement with decedent that she should be given
If the verdict had been against appellee, she might have complained of this instruction, for the reason that it submitted to the jury the question as to whether her services, or a part thereof, were gratuitously rendered, where there was no evidence which would justify a finding against her on that question. McMahon v. Flanders (1878), 64 Ind. 334; Moore v. State (1879), 65 Ind. 382.
In the case of Hunt v. Osborn, supra, the court said: “The question on which the decision of the case hinged was whether, at the time the services were rendered, the appellee expected to charge for them. It was claimed by the estate that they were mere acts of neighborly kindness rendered without charge or expectation of pay therefor at the time, and that the charge now made was an afterthought.” The question as to whether the services were gratuitously rendered was the pivotal question in that case; but in this case, no such question was presented by the evidence. As there is no evidence tending to prove that any of the services rendered by appellee to decedent were gratuitous, and as a finding in favor of appellant on this ground would have
Judgment affirmed.