Startin v. Madsen, 7594

• Decision Date: 21 November 1951
• Docket Number: No. 7594,7594
• Citation: Startin v. Madsen, 120 Utah 631, 237 P.2d 834 (Utah 1951)
• Parties: STARTIN, v. MADSEN.
• Court: Utah Supreme Court

Page 834

237 P.2d 834

120 Utah 631

STARTIN, v.MADSEN.

No. 7594.

Supreme Court of Utah.

Nov. 21, 1951.

Christenson & Christenson, Provo, for appellant.

Backman, Backman, & Clark, Salt Lake City, for respondent.

CROCKETT, Justice.

Eliza Startin, sister of the decedent James Madsen, sued his estate for services rendered in giving personal care, housekeeping, practical nursing and supplying food and provisions to him for six years just prior to his death.A jury awarded her $4200.

Defendant appeals, claiming the trial court erred: (1) in permitting plaintiff to give certain testimony in violation of the so-called dead man's statute; (2) allowing the jury to consider the value of services performed for Mrs. Madson (wife of deceased); (3) allowing the jury to consider the value of services performed by others in assisting plaintiff; (4) failing to give certain instructions as to defendant's theory of the case, and certain cautionary instructions; and (5) allowing the jury to find the verdict when there was no competent evidence as to the value of plaintiff's services.

Although some of the evidence was controverted, the following is a fair summary of the facts established: James Madsen, brother of plaintiff and defendant, died at 88, having been bedridden and in need of close personal care for the previous six years.His aged wife, Priscilla, was able to do some household tasks the fore part of this period, but was in need of some care and assistance herself, particularly during the last two years when her memory completely failed her.Plaintiff lived about two blocks away.Her husband also was very ill during part of this time, and although she had to divide her attention between her own home and that of the Madsens, she nevertheless prepared meals for the Madsens, first at their home, and later for several years at her own home, carrying them the two blocks three times daily.Assisted somewhat by her daughter and daughter-in-law, she prepared these meals, bought provisions, cleaned the Madsen home, washed their clothes and linens, bathed Mr. Madsen, changed his bedding, gave him medicine when needed, and otherwise provided comfort and necessaries principally to Mr. Madsen and partially to Mrs. Madsen.Her services became increasingly burdensome as the Madsens grew older.Plaintiff's other brother, defendant herein, and his son also assisted the Madsens some.Upon those facts, the jury verdict of $4200 was rendered.

We discuss the errors assigned in the order listed above:

The so-called dead man's statute, Sec. 104-49-2, U.C.A.1943, so far as here material, provides that no person asserting a claim adverse to the estate shall testify to any matter of fact equally within the knowledge of the witness and the deceased.In Burk v. Peter, Utah, 202 P.2d 543, this court recognized that there is a waiver of the incompetency to testify created by this statute where the deceased's representative or witnesses called on behalf of the estate testifies, and to the extent which such witnesses testify as to facts or transactions, testimony otherwise prohibited by the statute may be received.The limitation is that the incompetency is waived only as to the particular matter opened up by the personal representative or his witnesses.The testimony of the plaintiff complained of in the present case involved a description of decedent's physical condition and need for assistance during the period of his illness, the amount of assistance rendered by the plaintiff, and the question of whether plaintiff had been compensated therefor.In an effort to minimize the services rendered and the need for assistance on the part of the deceased, and to show payment for any services rendered by the plaintiff, these matters were fully covered in defendant's testimony.Accordingly, the executor waived the incompetency of the plaintiff and it was therefore proper to permit her to testify as to these matters in rebuttal.

There was no error in allowing the jury to include the value of services rendered to Priscilla Madsen, wife of the deceased, since nothing furnished to Priscilla in this case could be construed to be anything but necessaries, the expense of which her husband and his estate are obliged to pay.County of Brown v. Siebert, 175 Minn. 39, 220 N.W. 156.

Likewise, it was not error to permit the jury to charge Madsen's Estate with help otherwise gave plaintiff in performing her duties to the Madsens.The benefit of any assistance procured by her would inure to her and not to the decedent unless it were expressly made to appear that such was the intent of the parties.

It seems unnecessary and inadvisable to treat in detail the assigned errors relating to the giving and refusal to give instructions.The instructions should not be susceptible of misconstruction as either comments on the evidence or arguments for either side of the case.It was the duty of the court to cover the theories of both parties in his instructions.Martineau v. Hanson, 47 Utah 549, 155 P. 432;McDonald v. Union Pacific R. Co., 109 Utah 493, 167 P.2d 685.If the instructions are considered as a whole, as they must be, Walkenhorst v. Kesler, 92 Utah 312, 67 P.2d 654;Redd v. Airway Motor Coach Lines, 104 Utah 9, 137 P.2d 374, the court adequately discharged this duty and fairly presented the issues to the jury.

Finally, we approach the problem which seems to be of critical importance in the case, that is, defendant's contention that the judgment cannot stand because there is no competent evidence of value of plaintiff's services.

We must keep uppermost in mind the provision of our statute, Sec. 104-14-7, U.C.A.1943: 'The court must * * * disregard any error * * * which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.'SeeRule 61 U.R.C.P. to the same effect.Before the appellant is entitled to prevail, he must show both error and prejudice; that is, that his substantial rights are affected and that there is at least a fair likelihood that the result would have been different.Boyd v. San Pedro, L. A. & S. L. R. Co., 45 Utah 449, 146 P. 282.Even if incompetent evidence is admitted, unless it is harmful to defendant, it is not ground for reversal.Thomas v. Ogden Rapid Transit Co., 47 Utah 595, 155 P. 436.See also in re McCoy's Estate, 91 Utah 212, 63 P.2d 620;Christensen v. Johnson, 90 Utah 273, 61 P.2d 597;andDavis v. Heiner, 54 Utah 428, 181 P. 587.

Being aware of that thought, we consider the contention regarding the insufficiency of evidence of value.The only such evidence in the record was the testimony of one Mrs. Mary Hopkins, which defendant assails as incompetent.She first identified herself as a practical nurse of 27 years experience in that county (Utah County); she testified that she thought she would be acquainted with charges made in Provo, the County seat, for practical nursing.Over the objection of counsel for the defendant, she was allowed to answer the following hypothetical question: 'In the event you were called into a case where an aged person was bedridden and you had to give them a service of bathing them and changing their bedding and getting their meals and giving them their medicine and watching them through the day would you have an opinion as to what the charge would be?'She answered that she would charge $7.00 per day for one patient or $50.00 per week for two, in addition to her board, room and laundry.

It must be said that we do not defend nor justify the way in which the question was put except to say that the record shows that the witness was exceedingly difficult to get any evidence from.

With respect to the question of proof of value of the services of plaintiff, we assert the following propositions:

(1) The services rendered were of such a nature that the jury could have assessed the reasonable value thereof without any special evidence of such value; (2) Even if it should be conceded that the testimony of the witness Mrs. Hopkins was incompetent, it was not prejudicial to the defendant; (3) Her testimony, although not of the most desirable quality, was not wholly incompetent.

Let us take a look at the general aspect of this case and the verdict which we are asked to overturn.The jury found the issues for the plaintiff and we, therefore, assume that they believed her evidence.She rendered the services over a period of six years, approximately 2,190 days.She was awarded $4,200, about $1.92 per day.A jury is made up of practical people who have common sense and judgment.They were entitled to take into consideration their knowledge acquired in the every day affairs of life in placing a value upon these services.In 58 Am.Jur.'Work and Labor', Sec. 63, p. 560, it is stated: '* * * The jury may from their knowledge of business and the value of labor, in assumpsit for work and labor, find a verdict for the value of the work done upon request without an express contract, notwithstanding there is no evidence of the worth of labor at the time and place the work was performed.'(Emphasis added.)This rule would apply to the type of work the plaintiff did.The term 'practical nurse' is just another name for ordinary housekeeping and the personal care and attention which every one gives to sick people in their own homes; that is, to prepare the meals, feed, bathe, clothe, change their clothing and their bedding and attend to their needs.There is nothing particularly technical nor professional about it.Every person of ordinary intelligence and understanding knows what that work consists of and has some idea as to its value.Surely, it was worth $1.92 per day if it were worth anything.

The testimony of Mrs. Hopkins was to the effect that such services were reasonably worth $7 per day.On that basis for six years the verdict would have been for $15,330.And even if such an award had been only for two and one-half years,...