47 Ind. App. 239 | Ind. Ct. App. | 1911
— Appellee filed a claim against the estate of Elizabeth Miller, deceased, for services rendered to decedent. After the claim was refused by the administrator, it was transferred to the trial docket of the Elkhart Circuit Court. The venue was changed to the Elkhart Superior Court, where a trial was had before a jury, resulting in a verdict and judgment in favor of appellee.
Appellant’s motion for a new trial was overruled, and error is here assigned on that ruling. Appellant, in support of his motion for a new. trial, insists that the verdict is not sustained by the evidence and is contrary to law. He also insists that the court erred in giving and in refusing to give certain instructions to the jury, and in admitting certain evidence.
This instruction was followed by instruction three, which defined an implied obligation as between strangers, and continued as follows: “But where the person rendering services and the person for whom they are rendered are members of a family living together as one household, and the service appertains to such condition, an implication of a promise on the part of the recipient to pay for the services does not arise from the mere rendition and acceptance thereof, but the services will be presumed to be gratuitous and to be bestowed and rendered in the performance of duty or the manifestation of kindly regard for which remuneration was not contemplated; and to support a recovery therefor, the burden will be on the plaintiff to show either an express contract for compensation, or such circumstances of the services as will overcome the presumption of the law that they were gratuitous, and to show that it was the intention and understanding of the parties that the services were to be paid for. So in this cause, if you find that plaintiff herein resided with her mother, and that she and her mother constituted one household, any services which plaintiff may have rendered for her mother, which apper
In the case of Haughton v. Aetna Life Ins. Co. (1905), 165 Ind. 32, it is said: “The statute only forbids the physician from making public matter concerning his patient communicated to or learned by him, as such, through his professional relation.”
In the case of Bower v. Bower (1895), 142 Ind. 194, 201, the court, in speaking of the statute to which we have referred, said: “He [the physician] did not expose or divulge any evidence, the knowledge of which he had acquired through professional relations with the testator. While it is true that the rule which forbids a physician to disclose in evidence matters communicated to him in the course of his profession is a salutary one, nevertheless it cannot be extended beyond its'evident letter and spirit.” See, also, Herrington v. Winn (1891), 60 Hun 235.
Having considered all of the questions presented by appellant, and being impressed with the view that a fair and impartial trial was had, and that no error intervened, the judgment is therefore affirmed.