Mounsey v. Bower
| Decision Date | 30 June 1922 |
| Docket Number | 11,094 |
| Citation | 136 N.E. 41,78 Ind.App. 647 |
| Parties | MOUNSEY, ADMINISTRATRIX, v. BOWER |
| Court | Indiana Appellate Court |
Rehearing denied November 15, 1922.
From Wells Circuit Court; Frank W. Gordon, Judge.
Action by Minta Bower against Mary A. Mounsey, administratrix of the estate of Sarah A. Williamson, deceased. From a judgment for plaintiff, the defendant appeals.
Reversed.
Abram Simmons, Charles G. Dailey and Virgil M. Simmons, for appellant.
W. H Eichhorn and John H. Edris, for appellee.
Appellee filed her claim against the estate of appellant's decedent, who was her mother, asking an allowance against the estate of $ 1,200 for twenty-four weeks' service at $ 50 per week, for nursing and caring for said decedent.
There was an answer in denial, and a trial by jury, which resulted in a verdict for $ 960. After appellant's motion for a new trial was overruled, an order of allowance against the estate was rendered for the amount of the verdict. The error assigned is the court's action in overruling the motion for a new trial. The substantial question presented by the motion is as to whether the court erred in overruling appellant's objection to a hypothetical question propounded to Dr. J. O. Taylor, witness for appellee, which question embraced, among other elements, the following: That the person for whom services were rendered was afflicted with arteriosclerosis, or hardening of the arteries, for three years or more and had all of the attendant physical ills; that her limbs were badly swollen, so much so that the skin burst, requiring additional treating and care; that the nurse in charge furnished the food for the sick person, also for herself, and the fuel, and did the washing for the sick person, both of the bedding and clothes, and employed such help as was required and paid the help with her own money. Appellant objected to the question for the reason that there was no evidence as to the foregoing hypothetical elements. The objection was overruled, whereupon the witness testified that such services as were described in the hypothetical question were worth from $ 50 to $ 60 per week.
We find no evidence that the decedent had been afflicted with arteriosclerosis, or hardening of the arteries, for three years or more, with all of its attendant ills; no evidence that the decedent while with Mrs. Bowers, the appellee, had a dropsical condition that caused her limbs to swell so that the skin burst requiring care and treatment; this condition developing after she went to the home of Mrs. Mounsey, where she died; no evidence that appellee furnished food and fuel except as it may be inferred that she did so while the mother was in her home; no evidence that appellee employed such help as was required and paid the help with her own money. There was no other evidence by appellee as to the value of her services. There was no evidence corroborating Dr. Taylor's evidence.
Amanda F. Meyers, a witness called by appellant, testified that she nursed the decedent in the year 1917, and that the value of services such as were required for her was $ 15 per week.
Ellen Jane Borne, a witness for appellant, had been nursing for fifteen years, and she thought that $ 15 would be reasonable compensation for such services as were required.
Dr. George E. Fulton, a medical practitioner for forty years, testified that the value of such services as were required for the deceased would be from $ 12.50 to $ 15. We mention this testimony as to the value of services, not for the purpose of weighing the evidence, which is not our province, but to make it apparent that, assuming that all the witnesses intended to testify conscientiously, Dr. Taylor must have taken into consideration elements that the other witnesses did not consider, and because of the burden of such elements must have fixed the value of the services even greater than the value of the services of a trained nurse testified to by him. He testified that he took as facts all the elements of the question in answering as to the value of services. But some of the elements, if true, were not proven, as aforesaid, and hence could not be considered. Under these circumstances, the hypothetical question to Dr. Taylor and his answers thereto, were of no value in fixing the compensation of appellee, and must have been misleading and prejudicial. There being no statement of appellee's counsel that he expected to furnish the required evidence, the objection to the question should have been sustained. See Huston v. Roots (1868), 30 Ind. 461; City of Warsaw v. Fisher (1899), 24 Ind.App. 46, 55 N.E. 42; Taylor v. Taylor (1910), 174 Ind. 670, 93 N.E. 9; Lehman v. Knott (1921), 100 Ore. 59, 196 P. 476; Williams v. Brown, Exr. (1876), 28 Ohio St. 547; Pittsburg, etc., R. Co. v. Moore (1903), 10 Ill.App. 304; Snyder v. Zeller (1903), 113 Ill.App. 34; Pierson v. Chicago, etc., R. Co. (1901), 116 Iowa 601, 88 N.W. 363; Burnett v. Wilmington, etc., R. Co. (1897), 120 N.C. 517, 26 S.E. 819; McDonald v. Rhode Island Company (1904), 26 R.I. 467, 59 A. 391. In the last case cited the court says: "If facts are assumed in a hypothetical question which are clearly so exaggerated as to impair the opinion, or are such manifest assumptions as to be misleading, confusing and outside the evidence, or fair inferences from the evidence, it should be excluded, and their admission might be prejudicial error in a given [or specific] case." Other authorities to the same effect are: Schnetzpy v. Zanto (1921), 174 Wis. 160, 182 N.W. 757; Levine v. Barry (1921), 114 Wash. 623, 195 P. 1003; Zimmern v. Standard, etc., Co. (1921), 205 Ala. 580, 88 So. 743; Union P. R. Co. v. McMican (1912), 194 F. 393, 114 C. C. A. 311; Ford v. Ford (1911), 100 Ark. 518, 140, 140 S.W. 993 S. W. 993; Ney v. Eastern, etc., Co. (1913), 162 Iowa 525, 144 N.W. 383; Order of United Comm. Travelers v. Barnes (1907), 75 Kan. 720, 90 P. 293; Ky. Traction, etc., Co. v. Humphrey (1916), 168 Ky. 611, 182 S.W. 854; Painton v. Cavanaugh (1912), 151 A.D. 372, 135 N.Y.S. 418; Kersten v. Great Northern, etc., R. Co. (1914), 28 N.D. 3, 147 N.W. 787; Missouri, etc., R. Co. v. Williams (1910), 63 Tex. Civ. App. 368, 133 S.W. 499; Missouri, etc., Iron Co. v. Ballard (1909), 53 Tex. Civ. App. 110, 116 S.W. 93; Guetig v. State (1879), 66 Ind. 94, 104, 32 Am. Rep. 99; Indianapolis, etc., Traction Co. v. Sherry (1917), 65 Ind.App. 1, 116 N.E. 594; Louisville, etc., R. Co. v. Falvey (1886), 104 Ind. 409, 420, 3 N.E. 389, 4 N.E. 908; Public Utilities Co. v. Handorf (1916), 185 Ind. 254, 263, 112 N.E. 775; Knutson v. Moe Bros. (1913), 72 Wash. 290, 130 P. 347; Dopman v. Hoberlin (1855), 5 Cal. 437; Carpenter v. Bailey (1892), 94 Cal. 406, 29 P. 1101; Woolner v. Spalding (1887), 65 Miss. 204, 3 So. 583; In re Lyddy's Will (1889), 53 Hun 629, 5 N.Y.S. 636; Reber v. Herring (1887), 115 Pa. 599, 8 A. 830; Roche v. Baldwin (1904), 143 Cal. 186, 76 P. 956; Roark v. Greeno (1900), 61 Kan. 299, 59 P. 655; Bennett v. Town of Mt. Vernon (1904), 124 Iowa 537, 100 N.W. 349; Bennett v. City of Marion (1903), 119 Iowa 473, 93 N.W. 558; Smart v. Kansas City (1902), 91 Mo.App. 586; Clark v. Riter-Conley Co. (1899), 39 A.D. 598, 57 N.Y.S. 755; Smith v. Manhattan R. Co. (1905), 48 Misc. 393, 95 N.Y.S. 529; Ruscher v. City of Stanley (1904), 120 Wis. 380, 98 N.W. 223.
Appellee's learned counsel, contending with much force that the hypothetical question was a proper question, says that it is for the jury to determine as to the value of the question, and as to whether the facts have been proven. It is undoubtedly the law that it is not necessary that the hypothetical facts should be uncontroverted, or that they should be clearly proved, or that they should be proved by a preponderance of the evidence. And such fact may be properly embraced in a hypothetical question, though a strong preponderance of the evidence is against its verity. But at the time of the question or thereafter there must be some evidence of the fact, or its inclusion will constitute error, and if the fact, but unproved, is of such a character as to have influenced the jury in its verdict, it is of course harmful and ground for reversal. To say that it is for the jury, and not for the court, to determine as to whether there was any evidence to support the hypothetical fact, would be a clear invasion of the prerogative of the court in determining the competency or incompetency of the proffered evidence. When the question contains hypothetical facts of which there is at the time no evidence, the court then and there commits error in admitting it, but the introduction of such required evidence thereafter makes such error harmless.
There is another cogent reason why this judgment must be reversed. Dr. Taylor had been the deceased's attending physician and he testified that all the knowledge that he...
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