Nims v. Cunningham

COOPER, P. J.

This action was brought to recover $1,500 for services rendered, expenditures incurred and money paid out by the plaintiff for defendant in connection with the care and medical treatment of defendant’s daughter during her last illness, all done at defendant’s special instance and request.

The case was tried before a jury, and a verdict rendered for plaintiff in the sum of $1,100. Upon this verdict judgment was entered, and the court subsequently made an order, denying the motion of defendant for a new trial. This appeal is from the order so made.

The evidence as to the value of the plaintiff’s services, and as to whether or not suitable and proper care was taken of the deceased during her unfortunate illness, was conflicting, and we cannot, even if disposed to do so, interfere with the province of the jury in this regard, and it is not insisted that we should do so.

The appellant relies' entirely upon certain rulings in the admission or rejection of evidence, which he claims to have been of such a serious and prejudicial nature as to call for a reversal of the order.

The first error assigned is in relation to the evidence of one Cody, who was called as a witness for the plaintiff. After this witness had testified to visiting the room where deceased was being cared for, and that there were dishes in the rooms; that they were-“mussed up,” and the bedclothing covered with coffee stains, and as to the condition of the night-gown of deceased, he testified that he afterward visited the rooms with the coroner’s jury, and found that they had been considerably changed and cleaned up, so they were in a different condition from that in which they were when the witness first

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saw them. Plaintiff’s counsel then asked the witness the following question: “Q. You did not wish therefore to leave the impression in whatever you say that the rooms had

been

in any way transformed for the purpose of inspection or anything of that kind?” Counsel objected to this question on the ground it was immaterial as to what impression the witness wished to leave. The court overruled the objection, and the defendant excepted. The witness answered, “That is a fact, yes, sir.” Counsel then asked the witness: “Q. Then with the exception of tidying up, the rooms were substantially the same when you went there the second time as they were when you was there the first time? A. Yes, sir, they were just about the same after they were cleaned.”