Rutherford v. Peppa

[310]

LANGDON, P. J.

This action was commenced against the defendant as administratrix of the estate of Elizabeth Taylor, deceased, to recover for care, medical services, and board and lodging furnished to the deceased by the plaintiff and his wife. The defendant, as administratrix, had refused to allow the claims filed by the plaintiff, amounting to about sixteen hundred dollars, and had filed an answer denying the indebtedness. The plaintiff offered testimony that deceased had been in the habit of spending week-ends at the home of the plaintiff and his wife for about twenty-nine years. During the last few years of her life she had not been in good health, and upon her visits to the plaintiff would frequently receive medicines from the plaintiff, who was a licensed physician. During the last eight weeks of her life, she remained with the plaintiff and his wife and died at their home. During this period she was furnished with food and care by the plaintiff and his family. Claim was made for board for the week-end visits during the period not barred by the statute of limitations, and for board and care and medical services during the last illness, as well as for the value of linen and bedding used by deceased in her lifetime, which plaintiff claimed he was obliged to destroy because of the infectious character of deceased’s illness.

The defendant offered no testimony, but made a motion for a nonsuit on the ground that there was no evidence that the services were rendered under circumstances showing that compensation therefor was contemplated by the parties, and that the evidence showed that the services were rendered under a promise by the deceased that she would remember the wife of the plaintiff in her will. The court granted the motion for a nonsuit. Thereupon the attorney for the defendant stated that he wished to withdraw the motion and submit the case. Attorney for plaintiff then stated that he wished to dismiss the action,' and on November 20, 1919, filed with the clerk a dismissal of the action. This motion to dismiss was opposed by the defendant. The court took the matter under consideration and on December 19, 1919, filed findings of fact and conclusions of law in favor of defendant and gave judgment accordingly.

[1]

We shall dispose first of the contention of appellant that the court had no power to render a judgment in favor