Chmielewski's Estate v. Chmielewski
| Decision Date | 31 March 1936 |
| Docket Number | 14,945 |
| Parties | CHMIELEWSKI'S ESTATE v. CHMIELEWSKI |
| Court | Indiana Appellate Court |
1. APPEAL---Assignment of Errors---Grounds for New Trial.---Grounds for new trial cannot be presented as independent assignments of error. p. 21.
2. APPEAL---Review---Conflicting Evidence.---Appellate Court will not weigh conflicting evidence and substitute its judgment for that of the jury. p. 22.
3. EXECUTORS AND ADMINISTRATORS---Claims Against Estates---Evidence---Admissibility---Other Claims for Same Items.---In trial of claim against an estate for services exhibit showing that claimant's wife had filed a claim in another court covering many of the same items, which was denied, held properly excluded, the wife's claim and the dispositions thereof not being material or relevant in the trial of her husband's claim. p. 23.
4. EXECUTORS AND ADMINISTRATORS---Claims Against Estates---Trial---Instructions---As to Contract for Services.---In claim against an estate for room and board furnished decedent, instruction that oral contract made at a particular time and place need not be shown, it being sufficient to establish that the services were rendered with the expectation of pay and accepted by decedent with the expectation of paying their reasonable value, held not error in view of evidence and other instructions. p. 23.
5. EXECUTORS AND ADMINISTRATORS---Claims Against Estates---Trial---Instructions---Reasonable Value of Services.---In claim against estate for room and board instruction that in absence of agreement for fixed price amount of recovery should be fixed as the reasonable value of the services, held proper. p. 23.
6. TRIAL---Instructions---Language---Use of Word "Lifetime."---In claim against an estate for services rendered decedent, use of word "lifetime" in instruction held not misleading since time when decedent yet lived was clearly indicated. p. 23.
7. APPEAL---Review---Instructions---Considered as a Whole.---All the law of a case need not be stated in one instruction, but all instructions must be considered together. p. 23.
From Porter Superior Court; Mark B. Rockwell, Judge.
Claim by Vincent Chmielewski against the Estate of Michael Chmielewski, deceased. From a judgment for claimant defendant appealed.
Affirmed.
D. P. Sevald, Wilson & Wilson and Mariann K. Sevald, for appellant.
J. B. Walters and M. Clyde Brown, for appellee.
This is an appeal from a judgment rendered by the Porter Superior Court on a claim filed by the appellee, Vincent Chmielewski, against the estate of Michael Chmielewski, deceased, for board, room, and services rendered by the said Vincent Chmielewski to Michael Chmielewski, for a period of twenty years from April, 1907, until April 13, 1927. The claim was filed in two paragraphs to which an answer in general denial was filed. This cause being at issue the same was submitted to a jury for trial. The jury returned the following verdict. "We, the jury, find the issues for the plaintiff, and assess the plaintiff's damages in the sum of $ 7,780.00." Thereupon, the court rendered a judgment upon the verdict for the plaintiff Vincent Chmielewski for $ 7,780.00 together with costs. The appellant filed a motion for a new trial which was overruled and this appeal was then prayed and perfected.
The errors relied upon for a reversal as shown in appellant's brief are: "(1) the court erred in overruling appellant's motion for a new trial.
(a) Because the jury erred in the assessment of the amount of recovery, in this, the amount is too large.
(b) Because the verdict of the jury is not sustained by sufficient evidence.
(c) Because the verdict of the jury is contrary to law.
(d) Because the court erred in excluding the following evidence offered by the defendant. Defendant's Exhibit No. 9."
Of course alleged errors a, b, c, and d above set out are not proper independent assignments of error and they must come up if at all under the motion for a new trial. We have examined the motion for a new trial however and find that they are contained therein as causes as are also alleged errors as to certain instructions. The appellant has in his brief under the heading of Propositions, Points and Authorities discussed them and also has discussed the alleged error as to the giving by the court of its own motion of each of instructions numbered 5, 6, 8, 9, and 17. Under the above heading the appellant also says that the court erred in modifying instruction number 5 but in that regard says that, "Ruling by the court on instruction number 9 will dispose of this error."
The evidence establishes the fact that Michael Chmielewski lived in the home of the appellee for a long period of years. The jury was warranted in concluding that he received board and lodging and services for which he had never paid and for which he expected to pay. The evidence was such as to sustain the conclusion which the jury...
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