Bowers v. Starbuck

Decision Date29 May 1917
Docket NumberNo. 22961.,22961.
Citation116 N.E. 301,186 Ind. 309
PartiesBOWERS v. STARBUCK.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Delaware County; Frank Ellis, Judge.

Action by Zerah C. Starbuck against Robert F. Bowers, administrator. From a judgment for plaintiff and in reliance on error in overruling his motion for a new trial, defendant appeals. Affirmed.

Willis S. Ellis and Alfred Ellison, both of Anderson, for appellant. J. W. Newton, W. A. Thompson, of Muncie, and R. W. Sprague, of Tucson, Ariz., for appellee.

LAIRY, J.

This appeal is from a judgment rendered by the trial court on a claim filed by appellee against the estate of which appellant is the administrator. The claim was in two paragraphs, the first being an ordinary account for work and labor performed by appellee in caring for the decedent, Lewis I. Bowers, and his wife for a certain number of days, and the second, setting out in detail the facts upon which appellee relied in the establishment of his right to recover.

This paragraph alleged, in substance, that on the 2d day of May, 1910, Lewis I. Bowers and wife were elderly people and invalids unable to care for themselves; that about that time decedent's wife, with the knowledge of her husband, requested her brother, the claimant in this case, and his wife, to come to the Bowers home and there together render such services as would be required in taking care of the stock upon the farm, washing, cooking, nursing, and caring for the persons of decedent and his wife, assuring claimant that they should be paid for all such services; that, pursuant to this arrangement, the claimant and his wife removed to the home of the Bowerses, and there rendered such service from the 2d day of May, 1910, continuously until the 6th day of May, 1911. The paragraph further alleges the value of the services rendered, and asks that the total amount thereof be allowed against the estate.

An answer in set-off for the sum of several items, including rent and various household articles, was filed by the administrator. There was a trial by jury, and a verdict in favor of claimant assessing his recovery in the sum of $1,162.35. The verdict was also in favor of the estate on the answer in set-off in the amount of $154.

Appellant's motion for a new trial was overruled. This ruling is assigned as the only error upon which appellant seeks a reversal.

[1] Under this assignment appellant calls in question the sufficiency of the evidence to sustain the verdict. It is particularly insisted that there is a failure of proof for the reason that the claim is for services rendered by the claimant, while the evidence is to the effect that the services were rendered largely by the claimant's wife. The statute which gives the wife the right to recover for her own services does not change the common-law rule that the services of the wife belong to the husband, except in cases where the wife carries on a separate business or work for others on her own account. Where she assists her husband in nursing and caring for aged persons, the husband may recover in an action for the services rendered by himself and wife, as such work of the wife is in the line of household duties, and performed in furtherance of the husband's undertaking and for his benefit. Hensley v. Tuttle, 17 Ind. App. 253, 46 N. E. 594;Citizens' St. R. Co. v. Twiname, 121 Ind. 375, 23 N. E. 159, 7 L. R. A. 352. This being true, the verdict is not affected by reason of the fact that the undisputed evidence shows a large part of the services to have been performed by the wife of the claimant.

[2] Objection was made to certain items of evidence admitted during the trial. The wife of claimant was allowed to testify as to a conversation between herself and her husband in reference to the arrangement between themselves that she was willing to go to the Bowers home and assist her husband, and that she should receive the pay for the contemplated services. The objection to this evidence was based upon the ground that the claimant and his wife were both disqualified by statute from testifying as to any facts which occurred during...

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2 cases
  • Parrish's Estate, In re, 572A244
    • United States
    • Indiana Appellate Court
    • March 1, 1973
    ...absence of such testimony. Thus, as the Appellate Court points out, the error, if it existed was harmless. See Bowers, Admr. v. Starbuck (1917), 186 Ind. 309, 313, 116 N.E. 301.' 'In the case at bar, there were no objections interposed to the testimony of appellee as was the situation in th......
  • DeWitte's Estate, In re, 20553
    • United States
    • Indiana Appellate Court
    • December 27, 1966
    ...absence of such testimony. Thus, as the Appellate Court points out, the error, if it existed, was harmless. See Bowers, Admr. v. Starbuck (1917), 186 Ind. 309, 313, 116 N.E. 301.' In the case at bar, there were no objections interposed to the testimony of appellee as was the situation in th......

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