Wallace v. Schaub
| Citation | 32 A. 324,81 Md. 594 |
| Parties | WALLACE v. SCHAUB. |
| Decision Date | 19 June 1895 |
| Court | Court of Appeals of Maryland |
Appeal from superior court of Baltimore city.
Action by Louisa Wallace against Herman Schaub, administrator of Henry Troemner, for personal services. From a judgment for defendant, plaintiff appeals. Reversed.
Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, and PAGE, JJ.
Watts & Smith and Thos. R. Clendinen, for appellant.
Emil Budnitz, for appellee.
This action was brought by Louisa Wallace to recover for certain services alleged to have been rendered by her to the defendant's decedent. The narr. contains eight counts. The first six are the usual money counts; the seventh and eighth set up special services rendered by the plaintiff to the deceased at his request. The defendant pleaded the general issue pleas, and (third) "that the alleged cause of action did not accrue within three years of the decedent's death." The plaintiff moved to strike out the third plea, and the refusal of the court to grant the motion constitutes the first exception. The plea of limitations is not a plea to the merits, and, being so regarded, must be received with strictness. Nelson v Bond, 1 Gill, 221. Yet it need not be set out in the words of the statute; a plain statement of such facts as may be necessary to form the defense being all that is required. Code, art. 75, § 3; Gott v. State, 44 Md. 336. The record shows that the suit was brought against the administrator of Henry Troemner, the decedent. The plea is that the alleged cause of action did not accrue within three years of the decedent's death, and, if that was so, it must have accrued more than three years before the bringing of the suit.
Having offered evidence, tending to prove the services of the plaintiff, a witness was in troduced, who testified that she was a trained nurse, and was acquainted with the value of services of nurses, trained and untrained. The counsel for the plaintiff proceeded to interrogate her as to the value of such services as the plaintiff had rendered, but the questions and the witness' answers were objected to, and the action of the court in sustaining the objections are the second and third exceptions of the plaintiff. When the compensation to be paid for services rendered is not fixed it is proper to receive evidence as to the price usually charged and received for similar services by other persons. The witness had testified she was familiar with what is paid for the services of an untrained nurse. She does not, it is true, locate in terms the place to which her knowledge applies, but she does state that she received her training in Baltimore, where the alleged services were rendered. Under these circumstances, we think her evidence was admissible and there was error in rejecting it. Stanton v. Embrey, 93 U.S. 548; Reynolds v. Robinson, 64 N.Y. 589; Harvey v. U. S., 113 U.S. 246, 5 S.Ct. 465; 1 Whart. Ev. § 446.
The fourth exception is to the instruction granted upon the conclusion of the plaintiff's evidence, to the effect that there was no evidence to establish a contract, express or implied, between the plaintiff and the decedent, and also no evidence legally sufficient to establish the pecuniary value of said services. This instruction raises the question whether there was any evidence from which the jury could legally find there was a contract, express or implied, between the parties. In Bantz's Ex'r v. Bantz, 52 Md. 693, it was held that, ...
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