Palmer v. Lodge

• Decision Date: 03 June 1919
• Citation: 30 Del. 537,109 A. 125
• Court: Delaware Superior Court
• Parties: ANNA E. PALMER v. GEORGE LODGE, Executor of Orpha P. Pierce, deceased

109 A. 125

30 Del. 537

ANNA E. PALMER v. GEORGE LODGE, Executor of Orpha P. Pierce, deceased

Superior Court of Delaware, New Castle County

June 3, 1919

Superior Court for New Castle County, May Term, 1919.

SUMMONS CASE, No. 100, March Term, 1919.

Action by Anna E. Palmer against George Lodge, executor of Orpah P Pierce, deceased. Verdict for plaintiff.

The plaintiff introduced evidence to show that Orpah P. Pierce during the latter part of her lifetime, was an aged and invalid woman; that she was wealthy and that, during the last years of her life, she lived with the plaintiff, whose time was given, to the detriment of her home and husband, almost entirely to nursing and caring for deceased; that during her last years the deceased frequently, and to numerous persons expressed her appreciation of her dependence upon the plaintiff and her intention to pay the plaintiff "so well that she would never have to work any more"; and that the plaintiff, had previously presented to the Executor a probated bill for her claim. The duplicate probated bill was produced at the trial, which was objected to, on the ground that it was not the original required by the statute. The objection was overruled.

The plaintiff, being asked, "Have you ever received any compensation for your services in nursing Mrs. Pierce?" The question was objected to as being a transaction with deceased.

Verdict for plaintiff.

William W. Knowles and L. Irving Handy for plaintiff.

Robert G. Harman for defendant.

RICE, J., sitting.

OPINION

RICE, J.:--

The question comes within the exception of the statute. The objection is sustained.

It was shown for the defendant that the deceased, during the time she lived with plaintiff, in addition to paying her board, performed acts of financial assistance to plaintiff and her husband; that she frequently visited friends and relatives and was, therefore, for considerable periods, away from plaintiff, and that she was amply able to pay her just debts during her lifetime, and that her reputation for the prompt payment of her bills was good.

A witness for defendant was asked, "Did Mrs. Pierce ever have any talk with you in regard to Mrs. Palmer, as to whether or not she owed her any money?" The question was objected to on the ground that the testimony offered is self-serving. Schagrin v. Schagrin, 28 Del. 318, 5 Boyce 318, 92 A. 862, was relied upon in support of the question.

RICE, J.:--

I do not consider this case an authority for the admission of this testimony. I sustain the objection.

The same witness was further asked, "Did you know of Mrs. Pierce's financial condition during the five years from March 24, 1913, to February 21, 1918?" Objected to on the ground of irrelevancy. Dougherty v. White, 25 Del. 316, 2 Boyce 316, 80 A. 237, Ann. Cas. 1914C, 876, was cited in support of the question, with the statement that it was permissible to show that the deceased was a wealthy woman and could and would have paid plaintiff's claim if she had owed it.

RICE J.:--

In view of the state of the evidence, the objection is overruled.

RICE, J., charging the jury:

This is an action of assumpsit brought by Anna E. Palmer, the plaintiff, against George Lodge, Executor of the estate of Orpah P. Pierce, deceased, and is based upon contractual relations which the plaintiff alleges existed between the plaintiff and Orpah P. Pierce, the deceased.

The plaintiff claims that the estate of Orpah P. Pierce, is indebted to her in the sum of $ 4,580 as compensation for services performed as a nurse and personal attendant for Orpah P. Pierce at stated periods from March 14th, 1913, to the twenty-first day of February, 1918, at the special instance and request of the said Orpah P. Pierce and upon her special promise to pay the plaintiff for the services so rendered; for which the plaintiff claims she has not been paid. The plaintiff further claims that the physical condition of Orpah P. Pierce, during the period covered by the plaintiff's claim for services, was so greatly impaired and she was infirm to the degree that she required constant personal attention and nursing.

The defendant denies that Orpah P. Pierce in her lifetime promised to pay the plaintiff for the services as claimed by her, and that for any services that the plaintiff performed for the deceased, Orpah P. Pierce, she was amply and fully paid. The defendant also claims that Orpah P. Pierce, the deceased, was in sufficiently good health as not to require services and personal attention to the extent claimed by the plaintiff.

Counsel for the defendant has requested the Court to give you binding instructions to find a verdict in favor of the defendant; but this the Court declines to do because it is of the opinion that the case should be submitted to the jury for their consideration and determination under the evidence taken in connection with the law as the court shall state it.

It is for you, gentlemen of the jury, after considering all the evidence in the case, to say whether Orpah P. Pierce, the deceased, did or did not during her lifetime promise to pay the plaintiff for...