Walsh v. Gilmore

• Decision Date: 05 February 1960
• Docket Number: No. 19195,No. 2,19195,2
• Citation: 130 Ind.App. 307,164 N.E.2d 358
• Parties: John R. WALSH, Executor of the Estate of Lottie Boersema, Deceased, Appellant, v. Albert F. GILMORE, Appellee
• Court: Indiana Appellate Court

Page 358

164 N.E.2d 358

130 Ind.App. 307

John R. WALSH, Executor of the Estate of Lottie Boersema Deceased, Appellant, v. Albert F. GILMORE, Appellee.

No. 19195.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1960.

John R. Walsh, John D. Staggenburg, Anderson, for appellant.

Charles F. Gaus, Byer & Gaus, Anderson, for appellee.

KELLEY, Judge.

In an action on a claim against the appellant estate appellee recovered a judgment for $1,379. The claim was based on specified services allegedly rendered the decedent, at her instance and request, over a period from June 15, 1952 to April 1, 1953, which were alleged to be 'reasonably worth' $5,000.

Appellant's motion for a new trial, overruled by the court, contains three specifications of error: (1) The decision of the court is contrary to law; (2) the decision of the court is not sustained by sufficient evidence; and, (3) the assessment of the amount of recovery is 'erroneous because it is too large.'

Under said first specification, appellant contends that the appellee claimant and his wife were incompetent witnesses to testify in behalf of claimant and as to material and relevant matters which occurred during the lifetime of decedent, and that the court erred in admitting such evidence over the objections of appellant. Asserted error of the court in the admission of evidence is not presented for determination by specifications in the motion for new trial that the finding or decision is not sustained by sufficient evidence or that the finding or decision is contrary to law. Bartenders, Hotel and Restaurant Employees Union Local 103, A. F. of L. of South Bend, Indiana et al. v. Clark Restaurants, Inc., 1951, 122 Ind.App. 165, 169, 102 N.E.2d 220. The motion must set out the questions, objections, answers and the rulings of the court. Van Ginkle et al. v. Mooy et al., 1937, 104 Ind.App. 282, 286, 10 N.E.2d 759; Kimmick et al. v. Linn et al., 1940, 217 Ind. 485, 486, 487, 488, 29 N.E.2d 207. See, also, Westfield v. General Finance Corporation, 1952, 122 Ind.App. 232, 236, 104 N.E.2d 136; Rogers Cartage Company v. Peglow et al., 1952, 122 Ind.App. 481, 482, 106 N.E.2d 235; Tompkins v. Smith et al., 1952, 122 Ind.App. 502, 517, 106 N.E.2d 487; Crawford v. State ex rel. Anderson, 1949, 227 Ind. 665, 671, 87 N.E.2d 877; McKee v. Mutual Life Insurance Company of New York, 1943, 222 Ind. 10, 12, 51 N.E.2d 474; Mackey v. State of Indiana, 1942, 220 Ind. 607, 609, 45 N.E.2d 205; Deming Hotel Company v. Sisson et al., 1940, 216 Ind. 587, 592, 24 N.E.2d 912; Kruzick v. Kruzick et al., 1954, 124 Ind.App. 365, 368, 118 N.E.2d 376; Romine v. Frank, 1954, 124 Ind.App 465, 466, 118 N.E.2d 900; Schrenker v. Grimshaw, 1954, 124 Ind.App. 493, 498, 119 N.E.2d 432; Hire v. Pinkerton, 1955, 126 Ind.App. 23, 26, 127 N.E.2d 244; Seward v. Seward, 1956, 126 Ind.App. 607, 610, 134 N.E.2d 560. It follows that appellant has not presented the error sought to be charged.

Said second and third specifications may be treated together. Appellant says there is insufficient evidence as to the reasonable value of the services claimed to have been rendered by appellee. Appellant has not assigned as a ground for a new trial any error by the court in the admission of evidence and, therefore, for the purpose of this appeal, we are required to consider the evidence as competent and properly before the trial court.

The court found that appellee 'is entitled to recover for the reasonable value of the services rendered to her (decedent) and for the amount of the sums he expended upon said decedent.' There is evidence, as delineated by appellee in his brief, that the latter expended the following:

1. Eight automobile trips with decedent, at an 'average cost' to appellee of $10.00 for each trip $80.00

2. Material for repair of flood lamp on back porch and for locks and keys 18.00

3. Material for the repair of front and back steps 1.50

4. Mileage cost of ten cents (10cents) per mile for approximately 3000 miles on 150 visits to home of decedent and automobile trips made with her 300.00

5. Paid out for repair of decedent's radio 1.50

There is further evidence, as set forth by appellee, that he went to decedent's residence an average of four times a week for a period of six months and that on each visit he would stay from one to four hours; that he took decedent on eight long trips at $10 a trip, as above noted; that he often took care of decedent's chickens; that on his visits he would take care of the gardens; that he repaired a flood lamp, changed locks on front and back doors and furnished keys therefor, all of which required 8 hours of labor; fixed the chicken fence two or three times and the oil heater in the brooder house; put a new damper on the furnace; fixed the freezer once and on another time when he couldn't fix it, he took the meat out of the freezer and put it in a licker at Pendleton and returned it when the freezer was repaired; fixed the back and front steps; unloaded sixty bushels of wheat from wagon and put it in a bin, requiring two to three hours; in winter months, when he went he went to decedent's home, he 'fixed the fire', cleaned out the ashes and carried them into the chicken lot; on two or three occasions he cleaned the walks, front and back, of snow; on several occasions took decedent to the grocery store, the doctor, and the bank, both in Pendleton and Anderson, and to her relatives in Warrington; mowed the lawn several times; had the radio repaired; visited the decedent an average of fifteen hours per week for the first six months, and ten hours per week for the rest of the period (June 15, 1952 to April 1, 1953), and that he believed he had spent a total of 675 hours with decedent.

Appellee testified that during the time aforesaid he was working for Sears, Roebuck and 'my daily wages would run two to two and a half an hour', and that he was on a commission basis and had 'one big and one smaller week', but his general average would 'make' at least $2 to $2.50 an hour. There is no evidence as to the kind or character of work he performed in his occupation nor is there any evidence that his services for the decedent resulted in any loss of his work or income at Sears, Roebuck. There is no evidence that his work at Sears, Roebuck was the same or similar in nature or kind as that performed for the decedent. The record discloses no layman, expert of opinion evidence as to the reasonable value of the said services rendered by appellee. In the absence of any such evidence we are at a loss to perceive the basis upon which the court arrived at the amount of its judgment. There is evidence, we think, as referred to above, which would support an allownace of expenditures and cost of automobile travel by appellee in the amount of $401. But we find no evidence of probative value to support the appealed from finding and judgment in the total amount of $1379.

Appellee says that the evidence shows and the court found that the 'payment and reimbursement' of appellee 'was to be effected by means of a will', which decedent failed to do and, therefore, the trial court could determine the amount of recovery claimant should receive in order to be well paid. And, further, that on the last page of her diary, decedent declared that she intended to will to the claimant herein 'all or a portion of her money in the bank, five bonds bought in 1946, and her household goods, including Frigidaire and deep freeze', and the 'court below was certainly exercising his prerogative as a trial court and trier of facts to determine, since the decedent failed to make the transfer and conveyance which apparently she planned to make, the reasonable value for the services rendered.'

The record discloses no evidence concerning any 'money in the bank' belonging to decedent, nor concerning said 'five bonds bought in 1946', nor the value of decedent's 'household goods, * * * Frigidaire and deep freeze.' In fact, there is no evidence showing that decedent owned or possessed any of said items at the time of of her decease. There was, therefore, no basis in fact to support appellee's proposal that the court could properly determine the reasonable value of the services rendered merely from a declaration found in decedent's diary. The finding of the trial court cannot rest upon conjecture, surmise, speculation of guess. Patton v. Cooper, 1918, 67 Ind.App. 664, 667, 119 N.E. 31, 32, and authorities cited therein.

Appellee cites Winston et al. v. Kirkpatrick, 1941, 110 Ind.App. 183, 37 N.E.2d 18 and Nolte v. Eyden, 1925, 82 Ind.App. 580, 146 N.E. 866 as sustaining his proposition that the court could find the amount of recovery by appellee because the decedent told him that he was to be well paid. The said Kirkpatrick case had no such question before it. The court was there considering the asserted want of evidence to warrant an inference of express or implied contract for services and payment thereof. In the said Nolte case, the court was considering the sufficiency of the evidence to sustain the jury's verdict. It does not appear from the opinion thereof that any question of the amount of the verdict being too large was presented to court. Appellee seemingly intends to urge that the amount of his recovery was incapable of measurement by fixed rules and, therefore, the same rested in the sound discretion of the court. To this effect he cites Henschen v. New York Central Railway Co., 1945, 223 Ind. 393, 60 N.E.2d 738. That was an action for damages for wrongful death. The court there said, inter alia, and in substance, that in such actions there is no money standard for the measure of damages because the elements lie in the realm of uncertainty and the estimation of damages is therefore left to the sound discretion of the jury within the range of the evidence. Such rule, however, has no application in actions, as here, for the reasonable value of services rendered a decedent.

In Hensley v. Hilton, 1921, 191...