Dallman v. Frank

HARRISON, P. J.

The plaintiff brought this action to recover $915 from the defendants as executors of the last will and testament of Lissette Chesney, deceased, as the reasonable value of services alleged to have been rendered to the decedent in her lifetime at her special instance and request. The defendants in their answer do not deny that services were rendered by the plaintiff to the decedent, but they allege that whatever services were so rendered were mere friendly and neighborly offices performed by the plaintiff of her own accord, and were rendered voluntarily and gratuitously, and for which no promise of payment was ever made by the decedent either expressly or by implication, Upon the trial of the cause the court found that the services were not rendered at the instance and request of the deceased, but were performed by the plaintiff voluntarily and gratuitously of her own motion, and were acts of friendship having no pecuniary value. Judgment was thereupon rendered in favor of the defendants, from which and from an order deny-

[543]

mg her motion for a new trial the plaintiff has appealed, and "urges in support of the appeal that the above findings of the court' were not sustained by the evidence.

The findings of a court, like the verdict of a jury, will be upheld in the appellate court if there is any evidence which, by reasonable construction, tends to support such findings; and in making its decision the trial court is at liberty to take into consideration not only the testimony given at the trial but also all inferences of fact which may be reasonably drawn from the facts established by such testimony. Upon an appeal the burden is upon the appellant to show error in the court below, and although the appellate court may be of the opinion that, on the evidence in the record, it would have reached a different conclusion, it is not for that reason authorized to set aside the findings of the. trial court. If the evidence is such that reasonable men may reach different conclusions thereon, the findings of the trial court must be sustained.

The main issue before the superior court was the character of the services rendered the deceased,—the plaintiff seeking to show that they were rendered under employment as a nurse, and the defendants that they were merely friendly offices gratuitously performed.