Ellis v. Baird

• Decision Date: 17 June 1903
• Parties: ELLIS v. BAIRD.
• Court: Indiana Appellate Court

31 Ind.App. 295

67 N.E. 960

ELLIS

v.BAIRD.

Appellate Court of Indiana, Division No. 2.

June 17, 1903.

Appeal from Circuit Court, Hendricks County; T. J. Cofer, Judge.

Claim filed by Ella Baird against Eldrid R. Ellis, administrator of James A. Baird, deceased. Judgment in favor of claimant, and the administrator appeals. Reversed.

John P. Allee, for appellant. Brill & Harvey, for appellee.

COMSTOCK, P. J.

Appellee, plaintiff below, the wife of W. H. H. Baird, who is a son of James A. Baird, deceased, filed her claim against the estate of said decedent for cooking, waiting upon, nursing, washing, and boarding decedent, as well as washing for and boarding his two sons, including loss of bedclothing and other garments, from the 1st of September, 1899, to the 18th day of October, 1900, at which time the said decedent died. The cause was put at issue by general denial, and a trial by jury resulted in a verdict and judgment in favor of appellee for $533.33 1/3.

The overruling of appellant's motion for a new trial is the only error assigned. The refusal to admit certain testimony is set out, with other reasons, in the motion for a new trial.

An objection to the following question propounded by appellant to Martha E. Baird, a witness introduced by appellee, was sustained: “I will ask you to state, Mrs. Baird, if you heard any statement made to the merchant from whom these groceries were purchased-these groceries that were used there by Mrs. Baird for her family, as to whom these groceries should be charged. You may state what was said, if anything, in your presence, on that subject.” The witness had previously testified that she was with Thomas, a son of the decedent, when certain groceries were purchased that were used in the family. Claimant was not present. In this there was no error.

Appellant offered to introduce in evidence the verified claim of W. H. H. Baird, husband of claimant, pending in court, against said estate, for the same kind of services, and rendered at the same time, as those embraced in claimant's claim. It was properly excluded.

The court refused to permit Oscar Stanley, a witness offered by the appellant, to testify, over the objection of the plaintiff, in response to the following question: “I will ask you, to refresh your memory, to refer to that bill, and tell the jury what provisions you furnished the old man Baird in the year from September, 1899, to the 18th day of October, 1900, and the kind of goods and provisions you furnished, if any.” The offer was not to introduce the bill in evidence, which would have been improper-the memorandum not having been made by the witness, and not being an original entry-but to tell what provisions were furnished decedent, after refreshing his memory from looking at the bill. A witness may refresh his memory by any means at hand. The court erred in excluding the question.

Dr. Charles T. Hope testified in behalf of appellant that he had, as a physician, treated the decedent during the months of August and September, a part of the time in which appellee claimed for services. He testified as to the number of times medicine was given to the decedent, and by whom the medicine was administered. Upon cross-examination the court permitted the following question: “What ailed him?” To which he answered: “He suffered from a complication of diseases. Primary underlying disease was a disease of the...