Roycroft v. Nellis

• Decision Date: 20 November 1936
• Docket Number: 29.
• Citation: 188 A. 20,171 Md. 136
• Parties: ROYCROFT v. NELLIS.
• Court: Maryland Court of Appeals

188 A. 20

171 Md. 136

ROYCROFT v. NELLIS.

No. 29.

Court of Appeals of Maryland

November 20, 1936

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by James Nellis against Mary A. Roycroft, administratrix of the estate of Andrew Gummer, late of Baltimore City deceased. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Harry Leeward Katz, of Baltimore, for appellant.

David J. Markoff, of Baltimore, for appellee.

JOHNSON Judge.

This is an appeal from a judgment rendered by the Baltimore City Court upon the verdict of a jury in favor of James Nellis the appellee. The declaration contains six common counts, one of which is "for work done and materials provided by plaintiff for defendant's decedent at his request." The amended bill of particulars filed in connection therewith shows the basis of the plaintiff's claim to be for services rendered Andrew Gummer, appellant's decedent from May 15, 1932, to June 24, 1935, consisting in preparing his meals, undressing, bathing, and dressing him, giving him alcoholic rubs several times a week, applying medicine to his legs and dressing them with bandages, and in general, acting as an orderly in seeing to his daily and nightly needs and comforts, which services required his constant attendance, and also consisted in keeping his living quarters clean, doing his washing and ironing, acting as a companion and running errands and rendering all service required by decedent at $15 per week, no part of which was paid by the employer during his lifetime.

Andrew Gummer was a bachelor, approximately 53 years of age, and lived in Baltimore City all his life. From childhood he had been a cripple and was required to use crutches. Four years prior to his death on June 28, 1935, he was not engaged in business and lived on Rose street until November, 1932, at which time he moved to the second story of what might be described as a two-room apartment in a house on Fleet street. During the last six months of his residence on Rose street and throughout the time he resided on Fleet street, appellee lived with him and allegedly rendered services for which he claimed compensation in this suit.

During the course of the trial, appellant reserved five exceptions to the rulings of the trial court, the first four of which relate to rulings upon evidence, while the fifth concerns its action upon the prayers. We will at the outset consider the first group of these exceptions. One of the plaintiff's witnesses, Mrs. Gladys Boll, who lived on the first floor of the house in which Andrew Gummer lived throughout the year 1934 and until his death in 1935, had testified at length concerning the character of services Nellis performed for him. She saw Nellis and Gummer daily and often conversed with Gummer. Plaintiff's counsel then asked her to tell some of the things she recalled with regard to those conversations. Her answer was that she used to ask him if he did not have any family or relatives, and he replied, "Yes, but none of my people visit me." Appellant objected to the answer and moved that it be stricken out, but the motion was overruled. We find no error in that ruling. The answer seems to be responsive, but, even if it were not, we fail to see how appellee was injured by it, in view of the further fact that other witnesses testified without contradiction that Gummer's relatives did not visit him.

In answer to another question, the same witness said: "He explained to me that Mr. Nellis had always looked after him for the past couple years, and he done everything in any way, shape or form to make him comfortable and I told him I thought it was mighty nice that he had someone to look after him, but he said he expected when he left his property to pay Mr. Nellis for what he did."

The court overruled appellant's motion to strike out that answer, and this raises the second exception. The answer not only tended to show a rendition and acceptance of the plaintiff's services, but was also some evidence that Gummer himself expected to pay for them. There was no error in this ruling.

Later the witness was asked, "Did he tell you that he had paid Mr. Nellis anything at all for the work?" The court overruled defendant's objection to this question, and this raises the third exception. Even if this question was improper, there was no injury, since the answer was that Gummer made no statement as to whether he had made Nellis any payments for his services.

The fourth exception was taken to the refusal of the trial court to permit appellant to state the value of her decedent's estate. The sole issue for the jury's determination was whether the estate was indebted to the plaintiff, and if so, in what amount, and we fail to perceive upon what ground an inquiry of this nature would have been relevant. The court acted correctly in sustaining an objection to this question.

The defendant offered three prayers, all of which were rejected, while the plaintiff offered one, which was granted. The defendant's first prayer reads as follows: "The Defendant prays the Court to instruct the Jury that upon the pleadings and evidence of this case there is no evidence legally sufficient to entitle the plaintiff to recover and the verdict of the Jury must therefore be for the Defendant."

As a variance prayer, this instruction is defective under Code, article 5, § 11, since it fails to state in what the variance consists. Storrs v. Hink, 167 Md. 194, 173 A. 66. However, since under many recent decisions of this court cited in Washington Railway & Electric Co. v. Anderson, 168 Md. 224, 227, 177 A. 282, similar instructions have been treated as demurrers to the evidence, we will consider it on that basis. It, therefore, becomes necessary to examine the evidence in the case and apply the law frequently stated by this court in numerous decisions. If the evidence is such that under it a rational mind could find for the plaintiff, the prayer must be rejected, and in applying this rule, we are compelled to assume the truth of all facts and necessary inferences deducible therefrom which tend to support plaintiff's right to recover. Moyer v. Justis, 112 Md. 220, 76 A. 496; Chapman v. Nash, 121 Md. 608, 89 A. 117; Parker v. Power, 127 Md. 598, 96 A. 800, Ann.Cas.1918C, 604; Erdman v. Trustees Eutaw M. P. Church, 129 Md. 595, 99 A. 793; Fisher v. Finan, 163 Md. 418, 163 A. 828; Washington Railway & Electric Co. v. Anderson, supra.

There was evidence in the case tending to prove that the plaintiff 37 years of age, disposed of his interest in a produce business in May, 1932, and immediately thereafter went to nurse and look after the decedent, who had previously during the life of a sister taken his meals at her home; that from the time plaintiff began living with Gummer, he remained there day and night, sleeping on a cot in the...