Knight v. Knight

• Decision Date: 01 March 1892
• Parties: KNIGHT v. KNIGHT.
• Court: Indiana Appellate Court

30 N.E. 421

KNIGHT

v.KNIGHT.

Appellate Court of Indiana.

March 1, 1892.

Appeal from circuit court, Grant county; R. T. ST. JOHN, Judge.

Action by Sabina E. Knight against Frank L. Knight, as administrator of John L. Knight, deceased, on a claim against the estate of decedent. Judgment for plaintiff. Defendant appeals. Affirmed.Alvah Taylor, for appellant. W. G. Sayre, for appellee.

ROBINSON, C. J.

The appellee filed a complaint in the nature of a claim in the Wabash circuit court against the estate of John L. Knight, deceased. The statement of the claim was in two paragraphs, and was verified as required by statute. The appellant demurred to the second paragraph of the claim, which was overruled, and exception saved. The cause was then, by change of venue, transferred to the Grant circuit court. On the issues joined the cause was tried in the Grant circuit court by a jury, resulting in a general verdict in favor of the appellee for $4,350. The jury also returned answers to interrogatories propounded by leave of court. Upon the return of the verdict and answers to interrogatories the appellant filed a motion to require the jury to make fuller answer to certain interrogatories propounded, which motion was overruled, and exception saved. Appellant then moved, in the order named, for a venire de novo, for judgment in favor of appellant on the second paragraph of the complaint, and for a new trial, which several motions were overruled, and exception saved. The court thereupon rendered the proper judgment of the allowance of said claim against said estate. Appellant assigns the following alleged errors in the trial court for a reversal of the cause: (1) Error of the court in overruling the demurrer to the second paragraph of the claim; (2) error in overruling appellant's motion to require the jury to return to their room and make fuller answers to interrogatories; (3) error in overruling motion for a venire de novo; (4) error in overruling appellant's motion for judgment on the second paragraph of the claim; (5) error in overruling the motion for a new trial. The first paragraph of the statement of the claim, omitting the verification, was as follows, viz.:

“The estate of John L. Knight, in account with Sabina Knight, Dr.

+-----------------------------------------------------------------------------+
                ¦To services as housekeeper for him from 1871 to 1880, at $100 per    ¦$ $900 ¦
                ¦annum                                                                ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦Cr.                                                                  ¦       ¦
                +---------------------------------------------------------------------+-------¦
                ¦By cash paid in 1882                                                 ¦200 00 ¦
                +---------------------------------------------------------------------+-------¦
                ¦To services as housekeeper and nurse from 1880 to 1884, inclusive, at¦1,825  ¦
                ¦$365 per year                                                        ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦To services as housekeeper and nurse from 1894 to his death, on the -¦2,190  ¦
                ¦day of -, 1888, at $2 per day                                        ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦Total                                                                ¦$4,915 ¦
                ¦                                                                     ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦Credit                                                               ¦200 00 ¦
                +---------------------------------------------------------------------+-------¦
                ¦Bal. due                                                             ¦$4,715 ¦
                ¦                                                                     ¦00”    ¦
                +-----------------------------------------------------------------------------+
                

The second paragraph of the statement of the claim alleged that the decedent was a widower, and the claimant was the widow of a son of the decedent, and the mother of one child, a son; that when or shortly after her said husband died, and her child was yet living, the decedent, John L. Knight, requested her to become his housekeeper, which she did, and so continued until the death of her said son, which occurred in the year 1888, and that as part payment for her said services he paid her $200, and no more; that after said child's death the decedent again requested her to remain as his housekeeper and (he having become debilitated by age and disease) his attendant and nurse, and that in consideration of so doing he would provide for her the share of his estate that would have gone to her said husband or child, had they or either of them lived; that in accordance with said request she did so remain, and gave to him all the waiting, watching, and care required for his comfort until he died, which was in the early part of the year 1888; that he left surviving him two children only, who were his only heirs, and an estate, as she is informed and believes, of the value of $15,000; that he died intestate, making no provision for her as aforesaid, and therefore she is entitled to have against said estate allowed her the sum of $5,000.

From an examination of the record it clearly appears, from the way the trial of the cause proceeded, that it was wholly immaterial as to whether the second paragraph of the statement of claim was good or bad on demurrer, as the court plainly withdrew that paragraph from the consideration of the jury by instructing them that, if the evidence supported the averment therein, still the recovery could only be the actual value of the services rendered. This instruction could have only been understood by the jury to mean that it was not enough to prove everything averred in the paragraph, but that the value of the services must also be proved, to warrant a recovery. The paragraph did not aver the services were of any value, and therefore the jury were required to find for the appellee upon the first paragraph or not at all. It is also plainly apparent from the record that the verdict was in fact found upon the first paragraph. This is clearly shown by the answer of the jury to interrogatories, by which it appears that the jury found the contract alleged in the second paragraph was never made, and that the verdict was based exclusively upon the first paragraph for the value of the services rendered upon an implied contract. Such being the condition of the record, it follows that all instructions and other rulings of the circuit court upon the second paragraph, or relating thereto, although erroneous, were productive of no harm to the appellant, and therefore cannot justify a reversal of the judgment.

The second error complained of, that the court erred in refusing to...