Weidman v. Thompson

65 N.Y.S. 481 | N.Y. App. Div. | 1900

Smith, J.:

To determine the extent of her recovery, the plaintiff was required to show the value of her services. Mary McNally, who had been graduated as a trained nurse, was called to testify to such value. She was first asked her opinion of the value of such services, basing it upon what she heard the witnesses testify. The evidence was allowed under defendant’s objection and exception, and she then swore that the value was eighteen dollars, or at the cheapest fifteen dollars. This was afterwards stricken out by the referee as incompetent. By a hypothetical question, assuming the services claimed by the plaintiff to have been rendered, the witness was asked her judgment of the worth of those services. This was objected to by the defendant upon several grounds, among which was that the witness was “ not competent to testify to those services referred to in the question.” The objection was overruled, and over defendant’s exception she testified that the services were worth fifteen dollars per week.

One other witness was called in behalf of the plaintiff, to wit, one Ella E. H. Hanny, who had been engaged in nursing for ten years, but had not been graduated as a trained nurse. She was asked the value of the services rendered which were specified in the hypothetical question. Her evidence was objected to upon the ground that she was not competent to testify. The objection was overruled, and over defendant’s exception she testified that the services were worth at least fifteen dollars a week. Upon the part of the defendant, one witness was sworn as to value. She had acted as a nurse for eighteen years. Upon the same assumed facts upon which the plaintiff’s witnesses testified, she put the value at twelve dollars a month, or three dollars a week, and if washing and ironing were included she would make it three dollars and fifty cents per week. Upon this testimony the referee has found the value of the plaintiff’s services to have been ten dollars per week.

The testimony of Mary McNally is most unsatisfactory. She has sworn that she did not know the value of household services as washing and ironing. She swears that the compensation of fifteen dollars or eighteen dollars was compensation for a trained nurse, and that one who was not a trained nurse at all was not entitled to the same compensation. Upon her redirect examination she swore directly to the contrary; that she estimated the services of the plaintiff at eighteen dollars a week, having in mind that she was not a trained nurse. By common experience we know that services of a domestic who adds some ordinary care to a sick person are not such skilled services as are to be measured by special compensation. It is clear that the services sworn to be worth fifteen dollars a week are such services when rendered' by a skilled nurse. No evidence appears in the case that this plaintiff has ever had any experience in nursing or that she had any such knowledge as would entitle her to any special compensation to which the ordinary domestic would not be entitled.

Neither the witness McNally nor the witness Hanny qualified herself to testify as to the value of those services rendered. The fact that they had had long experience in nursing and perhaps knew the value of the services of nurses of their own classes, does not necessarily qualify them to testify to the value of services of a domestic without any experience whatever as a nurse, who notwithstanding attends somewhat to a member of the household. The objection that these witnesses were not competent to testify to such value should have been sustained. Were it otherwise, in the light of common experience the evidence is not sufficient to sustain the conclusion of the referee.

Upon the merits also we are of the opinion that the plaintiff has not satisfactorily proven her claim. In Kearney v. McKeon (85 N. Y. 139) it is held that “ claims withheld during the life of an alleged debtor and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon very satisfactory proof.” This rule we think a salutary one and applicable to the case at bar. These services ended upon the 14th day of June, 1895. The defendant’s testatrix died upon the 17th day of January, 1898. It does not appear that any claim whatever was made prior to her death. In a letter written by the plaintiff to defendant’s testatrix upon April 2, 1897, she acknowledges the receipt of “ things you sent,” and writes referring to her son: “ I think it is a good place for him & I hope he will stay he has to stay a month befor he gets his pay, so he has not recived any money yet, & I wrote to him when he got his pay he must pay you.” Her urging her son to pay defendant’s testatrix moneys which he was owing her without mention of her own claim, strongly discredits the claim she now makes, that at that time the deceased was in her debt for services rendered nearly two years prior thereto.

For these reasons we think the learned referee erred in his conclusion that the plaintiff was entitled to a judgment.

All concurred.

Judgment reversed on the law and facts. Referee discharged. New trial granted, with costs of the appeal to appellant to abide the event.