Vaught v. Barnes' Estate

• Decision Date: 26 November 1901
• Citation: 29 Ind.App. 387,62 N.E. 93
• Parties: VAUGHT v. BARNES' ESTATE.
• Court: Indiana Appellate Court

29 Ind.App. 387

62 N.E. 93

VAUGHT

v.BARNES' ESTATE.¹

Appellate Court of Indiana, Division No. 2.

Nov. 26, 1901.

Appeal from circuit court, Clark county; James K. Marsh, Judge.

Proceedings by Zerelda Vaught against the estate of Mary Barnes, deceased, for the establishment of a claim. There was a general verdict for plaintiff, and a judgment for defendant non obstante veredicto, and plaintiff appeals. Reversed.

Burtt & Taggart, for appellant. W. H. Watson, for appellee.

WILEY, J.

Appellant filed a claim against the estate of Mary Barnes, deceased. It was not allowed by the administrator, and was regularly passed to the trial docket, where the case was tried by a jury, resulting in a general verdict for appellant. With the general verdict the jury found specially as to specific facts by way of answers to interrogatories. Appellant's motion for judgment on the general verdict was overruled. Appellee's motion for judgment non obstante veredicto was sustained. The rulings upon these motions are the only errors assigned, and may properly be considered together. No attempt is made to bring the evidence into the record. Appellant's claim was for boarding, lodging, nursing, washing, caring, and providing for decedent for a period of 54 weeks, at $10 per week. No answer was filed, and the general verdict for appellant was for $275. The interrogatories submitted to and answered by the jury are as follows: “(1) Did the claimant, Zerelda Vaught, have any contract with the decedent, Mary Barnes, during her lifetime, for boarding, lodging, nursing, and caring forsaid decedent? Ans. No. (2) If the claimant had any contract with the decedent during her lifetime, when and where was such contract made, and how much per week was claimant to receive from decedent's estate? Ans. No contract made, and no amount promised. (3) What relation was decedent, Mary Barnes, to claimant, Zerelda Vaught? Ans. Daughter. (4) Did Mary Barnes, the decedent, for a number of years prior to her death, live among her children, of whom Zerelda Vaught was one? Ans. Yes.” The simple question here for decision is, is the general verdict in irreconcilable conflict with the answers to the interrogatories? If this inquiry can be answered in the affirmative, then the judgment must stand, for the rule is that, where the general verdict and answers to interrogatories are in irreconcilable conflict, the latter will control, and the former must yield. Notwithstanding this imperative rule, we must indulge every reasonable intendment in favor of the general verdict. If, in fact, the evidence showed that the deceased was living with appellant as a member of her family, to entitle her to recover it was necessary for her to show that there was an express contract by which she was to be remunerated, or to show facts that would imply a promise on the part of decedent to pay. Where a parent and an adult child live together as...