Lockwood v. Onion

• Decision Date: 30 September 1870
• Citation: 56 Ill. 506,1870 WL 6570
• Parties: HANFORD LOCKWOOD et al., Executors,v.ADDISON ONION.
• Court: Illinois Supreme Court

56 Ill. 506

1870 WL 6570 (Ill.)

HANFORD LOCKWOOD et al., Executors,

v.ADDISON ONION.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was a claim filed by Addison Onion, against the estate of Ralph Lockwood, for services as nurse, rendered deceased in his life-time, and for board and lodging. A trial by jury in the court below resulted in a verdict and judgment for the plaintiff. The defendants appeal.

Messrs. BANGS & SHAW, for the appellants.

Messrs. BURNS & BARNES, Mr. G. L. FORT, Mr. N. W. Lows and Mr. BOAL, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This cause was before this court at the September term, 1868, and a succinct history of the case may be found in the opinion then delivered. Lockwood et al. v. Onion, 48 Ill. 325. The judgment at that time was reversed, because the damages assessed by the jury ($3,411.60) were deemed excessive and oppressive in proportion to the services rendered by the appellee.

On the cause being remanded, the same was again tried at the April term, 1869, and the jury found for the appellee, and assessed his damages at $4,680, which verdict the court set aside, and awarded a new trial. At the August term, 1869, the cause was again tried, and resulted in a verdict for the appellee for $3,938.40, and the court overruled a motion entered for a new trial, and rendered judgment on the verdict. To reverse this judgment, the appellants now prosecute their appeal to this court.

The only errors assigned, that we deem necessary to consider, are, first, that the court erred in admitting improper testimony offered by the appellee; second, that the damages awarded were excessive.

The court permitted the appellee, against the objection of appellants, to testify to the consideration of certain notes given by the appellee to the testator in his life-time, and which notes had been filed by the executors as a set-off to the appellee's supposed claim. This, we think, he was not authorized to do. Parties to the record, and in interest, are made competent witnesses solely by the statute, and the admissibility of the evidence objected to must be determined by the construction to be given to that statute. The evidence given by the appellee tended to impeach the consideration of the notes, and to show that he had never received the amount of money from the testator that the notes expressed on their face. That was a fact occurring prior to the death of the testator, and the testimony offered was, therefore, clearly prohibited by the second section of the act of 1867. It is provided by that section that no party to any civil action, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the first section of that act, when any adverse party sues or defends as executor of any deceased person. To that section, however, there are a number of exceptions, but the evidence given by the appellee does not come within the provisions of any one of them. No witness in interest had testified to any fact that would bring the testimony, given by the appellee, within any of the excepted cases provided for by the exceptions to that section.

The serious question involved in this record is, whether the damages awarded by the jury, in view of the services rendered by the appellee, are not excessive and oppressive in their amount. When the cause was before this court at a former term, the verdict was not then so high as now, upon substantially the same evidence as is contained in the present record, and the damages were then pronounced to be excessive. It is true that some additional evidence was taken and heard on the last trial. But, for the most part, it is simply cumulative as to the value of the services rendered by the appellee in his attention and care bestowed on the deceased. The only evidence that can be properly denominated new is that which defines, with more accuracy, the disease with which Lockwood was afflicted. There is evidence tending to show that the disease was of the most loathsome and revolting character. There is, however, some evidence tending to show that the physicians who pronounced on the character of the sickness were mistaken in the pathology of the disease with which he was afflicted. By whatever name the disease may be called, it is very apparent that it was of such a character as to render the duties of the nurses very disagreeable. Few persons could be employed to undertake the care of the person thus afflicted, and, as was said in the former opinion, the faithful nurse ought to be well and liberally paid. In the absence of any special contract, such services, like all other labor, can only be remunerated by a reasonable compensation. Such is the rule of law. If the appellee did not stipulate for extraordinary compensation, the law implies that he undertook to perform the services for a reasonable compensation. The appellee was under no legal obligation to perform the services, and if he was not willing to do so for reasonable wages, it was his plain duty to...