79 Ind. App. 45 | Ind. Ct. App. | 1921
Appellee filed a claim against the estate of Mary E. Minnis for services. A trial by jury resulted 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. In support of his motion for a new trial, appellant insists: (1) That the verdict is not supported by sufficient evidence; (2) that the amount of recovery is erroneous, being too-large; (3) the refusal to give certain instructions; and (4) the admission of certain evidence.
Appellee in her verified claim alleges that in 1892, when she was nine years of age, she was received into the home of decedent, and'continued to reside with decedent, until her death in October, 1918; that in 1904, after appellee had become twenty-one years old, decedent and her husband proposed and agreed that if appellee would act and do by them as a child, and assist in the.
The evidence is ample to support a finding that the decedent and her husband agreed to pay appellee for the services she rendered them after she became twenty-one years of age, and that decedent renewed this promise after the death of her. husband. Eppert v. Gardner (1911), 48 Ind. App. 188, 93 N. E. 550; Miller, Admr., v. Eldridge (1891), 126 Ind. 461, 27 N. E. 132.
This is not a case like Corcoran v. Corcoran (1889), 119 Ind. 138, 21 N. E. 468, 4 L. R. A. 782, 12 Am. St.
We know of no statute prohibiting a married woman from entering into an agreement like the one here involved. It was not a contract of suretyship. Neither was it a contract that would render the lands of the wife liable for the debts of her husband. §§7852, 7855 Burns 1914, §§5116, 5119 R. S. 1881, cited by appellant are therefore not in point. A married woman is liable for medical services rendered at her special instance and request and upon her express promise to pay. Elliott v. Gregory (1888), 115 Ind. 98, 17 N. E. 196. She is liable on a note given for wearing apparel. Arnold v. Engleman (1885), 103 Ind. 512, 3 N. E. 238. Ability to enter into a contract is the rule, and disability is the
Instructions Nos. 3, 4 and 14, tendered by appellant, were fully covered by Nos. 5 and 6 given by the court on request of appellant.
Instructions Nos. 10 and 12 requested by appellant related to the liability of the decedent’s husband and the non-liability of the decedent for the value of the services rendered by appellee prior to the death of Mr. Minnis. They were based upon the theory that Mrs. Minnis was not liable on her agreement to compensate appellee for such services. There was no error in refusing either of these instructions.
This witness appears to have been a personal friend and business adviser of Mr. and Mrs. Minnis as well as their family physician. They went to him with their business troubles' and advised with him, and on such occasions talked with him concerning appellee, and on at least one of such visits said they wanted her to be well paid for her services. They talked about making a will for that purpose, but never did so.
As said by the court in Miller v. Miller (1911), 47 Ind. App. 239, 94 N. E. 243: “It does not appear that the decedent’s statement to the witness was in any manner connected with the making of any examination of the patient, or with any conversation with reference to the ailments or diseases with which the patient was suffering, or for which she was being treated, or in any manner pertained to such physician’s employment, or that it was made while anyone was advising claimant as to thé care and attention the mother should receive.” Except as otherwise provided, ‘all persons are competent witnesses in civil proceedings. Section 520 Burns 1914, §497 R. S. 1881, provides that “physicians, as to matters communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases,” are not competent witnesses. The facts
There was no error in overruling the motion for a new trial.
Judgment affirmed.