57 Ind. App. 151 | Ind. Ct. App. | 1914
Action by appellee upon the following claim filed against the estate of appellant’s decedent:
“Estate of David Yost, deceased, to Rachel Dunk, Dr. To board and washing, nursing, care and attention in sickness and in health of David Yost, from April, 1902, to the date of his death, November 26, 1910, continuously, one hundred four (104) months, at — Seventeen dollars ($17.00) per month...............$1,768.00”
Decedent was claimant’s father. Briefly, the evidence shows that claimant for a few years prior to her marriage kept house for her father. After her marriage she removed to a separate farm and there lived with her husband until nine years prior to the death of her father, when she, together with her husband Orley Dunk, and their two children removed to his farm consisting of forty acres of land situated in Tippecanoe County, where decedent made his home in the family up to the time of his death. Five years after the removal of claimant and family to the farm, Orley Dunk purchased and paid for twenty acres of the farm, upon which twenty acres the house was situated, the barn being located on the twenty acres retained by decedent. There is evidence tending to show that during said period of time Orley Dunk paid grain rent for the use of said land. There does not appear to be any evidence to show that decedent paid anything for the board, care and attention given him during said period. At the time of his death he was seventy-
There was a trial by jury and judgment for appellee for the amount of her claim. The only error assigned is the overruling of appellant’s motion for a new trial. The reasons therefor are as follows: (1) That there was an abuse
of judicial discretion in calling appellee on the trial of said cause before the jury to testify in her own behalf. (2) That the verdict of the jury was not sustained by sufficient evidence. (3) That the verdict of the jury was contrary to law. (4) Error in admitting certain testimony of appellee.
Decedent had property out of which he could pay for his care. This daughter was under no higher moral obligation to care for her father under such circumstances than his other children, who are resisting this claim. It is not reasonable to suppose that decedent intended that his daughter should go unrewarded, nor that the claimant had any other expectation than that she would be paid, however strong might be her affection for her father. Under such evidence, a contract between the parties could well be inferred, and the court did not abuse its discretion hr calling claimant as a witness. Williams v. Resener (1900), 25 Ind. App. 132, 56 N. E. 857; Stewart v. Small (1894), 11 Ind. App. 100, 38 N. E. 826; Hill v. Hill (1889), 121 Ind. 255, 261, 23 N. E. 87. In the case of Myers v. Manlove (1913), 53 Ind. App. 327, 101 N. E. 660, the court said that the action of the trial court in exercising the discretion provided by statute must depend upon the particular facts in each case. “This we regard as the correct rule in determining whether the eoujjt in any case is justified in exercising the discretion given by the statute. It is not an arbitrary privilege granted the trial court, but nevertheless the statute is to be reasonably construed and applied to meet the particular ends of justice it was intended to subserve. The trial court sees the witnesses, and has a better opportunity to draw correct inferences from the testimony than a court of appellate jurisdiction.” This we regard as the true rule, and when this standard is applied to the facts in this case, we think there was no abuse of the trial court’s discretion in requiring claimant to testify.
It follows that the other reasons assigned in support of the motion for a new trial are not well taken. No error appears in the record. Judgment affirmed.
Note. — Reported in 106 N. E. 644. See, also, under (1, 2) 40 Oye. 2339.