Case 13 — Action by E. A. Green against Wm. P. Green’s Executor to Recover for Work Done for Decedent

November 18.

#### Green’s Exr. v. Green.

appeal from grant circuit court — JOHN M. LASSING, circuit JUDGE.

From the Judgment both Parties Appeal.

Reversed on both appeals.

Contracts — Rendition of Services to Relative — Recovery—Evx- ■ dence — Necessity of Contract — W'itnf.sses—Claim Against Decedent’s Estate.

1. In an action against an administrator to recover for services rendered to the intestate, plaintiff was incompetent to testify as a witness in his own behalf.

2. Where in an action against an administrator to recover for services rendered the intestate, plaintiff was allowed to testify in ■ his own behalf without objection, and, the admission of such ■ evidence was not assigned as error in support -of a motion for a new trial, error in the court’s ruiing on such evidence was of no avail to defendant on appeal.

3. In an action against an administrator .for services1 rendered the intestate in the.way, of looking .after his’.-farm and nursing and oaring for him while ill, it was proper to permit neighbors’and friends, of .both parties , who professed ■ to know the-¿ature of *104the services and their value, to testify as to the value of such services.

4. In an action against an administrator to recover for services rendered1 the intestate, the uncle of plaintiff, in thé way of caring for his farm, nursing and caring for him in his last illness, plaintiff could not recover in the absence of some proof that both! parties intended and expected that compensation should be paid.

CLORE & GREiEN, attorneys for appellant

1. We submit that all the statements made hy the plaintiff in support of his claim for services rendered for the decedent are incompetent.

2. There ts no evidence that the' deceased ever agreed or. promised to pay for the plaintiff’s services.

3. A statement by deceased that plaintiff should be well paid for bis services, do not amount to a promise to pay. Reynolds v. Reynolds, 13 R., 793.

4. The evidence shows that what services were rendered hy plaintiff were rendered gratuitously without any expectation of reward or compensation.

5. The claim sued .on was not made out and proven, and demand made of the executor for payment as required by the statute

C. An instruction by the court to. the jury, that if “you believe that plaintiff rendered decedent any services, and that said services were accepted by the decedent, you should find for the plaintiff the value of such services” was erroneous, without adding that the services must be rendered with an intention of the .plaintiff to charge, for same. Lowe, Admr., v. Webster, 19 R., 1208; Baxter’s Admr. v. Knott, 19 R., 1973; Frailey’s'Admr. v. Thompson, 20 R., 1179.

W. W. DICKERSON and R. L. GREENE, attorney's for appellee.

1. Where there Is an insufficient verification of a claim against a decedent’s estate it can only be taken advantage- of by affidavit filed and motion for a rule to show cause why it should not be dismissed. Thomas v. Thomas, 5 B. M., 178; Lyons; Exr., v. Logan County Bank, 25 R., 1668; 79 Ky., 583.

2. The general denial of every item of plaintiffs account, and an allegation that it was a gratuity, put the claim in issue, and-upon a trial by a jury all errors in the pleadings were cured, by the verdict.

*4.*Where no objection is made to the evidence of a plain*105tiff who testifies for himself against a decedent, the objection is waived and the evidence is not incompetent.

5. While the defendant objected to the instruction given by the court, he did not offer any instruction in lieu thereof, and can not now be heard to complain.

6. The verdict of the jury is responsive to the issue made, is a just and fair finding and should be affirmed.

Opinion or the court by

JUDGE BARKER

Reversing.

This action was instituted in the Grant circuit court by the■ appellee, Elijah A. Green, to recover from appellant, the executor of William P. Green, a claim of $950, alleged to be due him from the decedent’s estate for work performed by him at the special instance and request of the decedent within two or three years next before his death, and which had never been paid. The appellee was the nephew of William P. Green, and lived some two miles from the residence of the latter. The uncle was an old man, greatly afflicted; and practically helpless. The services of appellee consisted in feeding the decedent’s stock, looking after his farm, and other menial work, but particularly in nursing and caring for him while sick. He sat up with him at night, gave him injections so that his bowels would properly perform the functions of nature, carried out and emptied the slops-, and-performed other services for the- sick man of a nauseating character. The answer placed in issue the material allegations of the petition, and alleged affirmatively that the services rendered by appellee were gratuitous, being such as a relative and neighbor would naturally render without expectation or hope of reward. This was denied by a reply, thus completing the issues. A trial by jury resulted in a verdict and judgment in favor of the plaintiff (appellee) for the sum of $600. Of this appellant now complains.

The objection of appellant that the claim of appellee was not properly proved as required by section’3870; Ky. St.,-is *106untenable.- An examination of the claim, as made out, shows tha.t;,. if. comes up fully to the statutory standard,, and- the trial court properly overruled, the motion to dismiss the case on that ground.

The. appellee was-.unquestionably incompetent to testify as a witness in his own behalf against the estate of the decedent, but he was allowed to do so without objection on the part of appellant, and the fact that this was- permitted by the court was not assigned as error in support of the motion for .a new trial. Therefore the objection to the court’s ruling on-this subject can not avail appellant on appeal.

It is urged that the witnesses who testified to the value of appellee’s services did not. qualify themselves- as experts to depose on that subject. These were .the neighbors and friends of both the appellee and! his deceased uncle. They all professed to know the nature of the services rendered, qnd their value, and, while they were not professional nurses, we think they were competent, under the circumstances, to express an opinion as to what the services were reasonably wo.rth.

At the close of the testimony, the court instructed the jury as follows: “If you believe from the-’ evidence that the. plaintiff rendered the decedent any services,. and that said services were accepted by the decedent, and that the plaintiff has not been paid for said services, then you will find for gjqid plaintiff such sum as you believe from the. evidence in, .this case would.be a just and fair compensation to plaintiff, for the services which you find he rendered the decedent, not. ejcqeeding $750, the amount claimed in the -petition.” Th,is .instruction., does not correctly state the rule of law applicable to thi,s case. Galloway’s Adm’r v. Galloway, 70 S, W., ,48, 24 Ky. Law Rep., 857, was,, in principle, similar to the one at bar. The claimant was the ni§ce of the decedent, *107and claimed from his estate pay for household services rendered him. The court, in the opinion, said: “There was some proof that Nelson Galloway intended and expected that appellee should receive pay for her services from him, and also that she expected to he paid something, probably by devise; but there, is no pretense of any sort of contract or agreement as to amount, or how or when the payment was to be made.” The court instructed the jury in three instructions that, in order to find for plaintiff, they must believe that the services were rendered; that there was an intention and expectation on the part of both appellee and decedent that she should be paid therefor, and that the services were performed at the instance or request of decedent with this intention and expectation or agreement on the part of both appellee and decedent; that, unless these facts were found, the verdict must be for defendant. Instructions Nos. lb and 2b, given in the case cited, aptly state the law in this, and are as follows “No. lb. If the jury believe .from the evidence ’that the plaintiff, Maggie Galloway, within the time beginning August 21, 1894, and ending August 24, 1899, did, at the instance or request of Nelson Galloway, render to him services or labor in the way of looking after and keeping clean and in order his room in the house in which he lived, making up and dressing his bed, mending, washing,, and darning- his1 clothing, or in cooking for the family,, of which he was a part, or did, after her. father*’» family and said Nelson Gallo war- ceased, to occupy the same, house,' at the instance or request of said Nelson Galloway; .coiOik .h-ia meals, carry them-to his room in cold weather-, wash or me'n.d-his clothing, dress and keep in order his room, or perform such general housework for him.; and-shall further; believe from the evidence -that said service -and wqrk,-.if-,smyv Was rendered by the'plaintiff with the intention and expectation *108*on*her part; and the intention and expectation or agreement on said Nelson Galloway’s paid that she should he paid therefor — they should find for the plaintiff the customary and reasonable válue of her services and labor so rendered, by ’ lifer, if any, as shown by the evidence, to' said Nelson Galloway, not to exceed $10 per'month, nor $600 in the aggregate.”

'“No. 2b. Second, upon the other hand, although the jury may believe from the evidence that labor and services were performed by the plaintiff for said Nelson Galloway of the character described in her petition, and at his instance and request; and if they further believe from the evidence that the same were performed without any intention at the time upon her part to charge her uncle therefor, or intention 6r agreement on his part to pay therefor, the law will presume iliat such labor or services were performed gratuitously, and in that event the jury should find for defendant.”' Upon the return of the case the above instructions should, in legal substance, be given as the law upon the next trial. To the same effect are Reynolds v. Reynolds, 18 S. W., 517. 13 Ky. Law Rep., 793; Lowe’s Adm’r v. Webster, 43 S. W., 217, 19 Ky. Law Rep., 1208; Baxter’s Adm’r v. Knox, 44 S. W., 972, 19 Ky. Law Rep., 1973; and Frailey’s Adm’r v. Thompson, 49 S. W., 13, 20 Ky. Law Rep., 1179.

It is' insisted by counsel for appellee that, because appellant did not present instructions to the court, he can not he heard to complain of the instruction given, although it may be erroneous. This is not the rule. In City of Louisville v. Keher, 117 Ky., 841, 79 S. W., 270, 25 Ky. Law Rep., 2003, it is said: “The rule is"<;thát only errors prejudicial to the 'substantial' rights of the party' complaining' are grounds of reversal. Iff civil cases' the circuit court is not required to give the whole law of the case in his instruction, but it is *109incumbent upon the litigants to ask such instructions as they deem proper.” The error in the instruction given was prejudicial to the substantial rights of the appellant, it permitting ihe jury to find for appellee (plaintiff) if the evidence shows that the services were rendered to and accepted by the decedent, and had not been paid for; all of which] might have been true without affording appellant any. right to recover under the principle enunciated in the cases' above cited. The fact that, appellant offered no instruction of his-own preparation .did not waive a positive and prejudicial error in the instructions given by the court.

The court struck from appellee’s claim an item of $200, because he could not itemize it with sufficient certainty and definiteness. From this ruling of the court appellee has prosecuted a cross appeal. This claim is. rather vague- and indefinite, but, considering the fact that thé parties were farmers, and unused to the keeping of books or accounts, we think it should have been submitted to the jury.

.For the reasons indicated, the judgment is reversed on the original and cross appeals for further proceedings consistent herewith. -