Mills v. Plant

Opinion by

Beaver, J.,

In the statement of the questions involved and in the appellant’s argument, the ten assignments of error are summed up in three distinct propositions. The first relates to the statement, which is repeated in the charge, that “ Mr. Plant is not a competent witness to testify to anything that took place in the lifetime of Mrs. Mitchell.” The fact of his incompetency is not denied but the complaint is that the interjection of the remark was by way of explanation which the court had no right to make and that it in some way invited the sympathy of the jury. The explanation was both natural and necessary. The remark was made in connection with a complaint made by the decedent as to the change of a stove in the room occupied by her, and the trial judge, in the course of his charge, simply remarked that the reason for making the change was not given in the evidence for the reason that the defendant was not a competent witness. There was certainly nothing wrong in this, nor can we see how the sympathy of the jury was either invited or incited thereby.

The second proposition relates to a remark of the court in reference to the testimony of Dr. Mitchell, a son of the decedent, who testified as to the value of the medicine and medical attendance furnished by him, for the recovery of which, among other things, the suit was brought by the administrator of his mother. The court said: “Dr. Mitchell is the only witness called upon that point but you are to consider that evidence. You are not to conclude it was worth $150 or $175 simply because Dr. Mitchell testifies to that fact. You will fix what you think would be a reasonable compensation for her medical attendance during that period from all the evidence in the case.” There was nothing erroneous in this instruction, the court evidently intending thereby to caution the jury that, because Dr. Mitchell was a son of the decedent, his testimony was not for that reason to be excluded from their consideration but that they were not bound by his estimate of his services but could fix such compensation as in their judgment would be reasonable, under all the evidence. But the question is one of no practical importance for the reason that the jury found for the defendant and, therefore, evidently did not reach the question of the value of Dr. Mitchell’s medicines and medical attendance. The main question in the case was as to the defendant’s liability under a bond which he had given for the maintenance of the decedent and whether or not he was absolved from the obligations of the bond by the alleged unjustifiable departure of the decedent from under his roof. Having found this question in favor of the defendant, all the other questions as to the amount to be recovered ceased to be of any importance.

The third proposition relates to the entire charge of the court as being “ prejudicial to the plaintiff’s cause, especially in not calling attention to the mental condition of Mrs. Mitchell.” It is to be observed that the court affirmed all of the plaintiff’s points and refused all of the defendant’s points, except two. In the trial of the case the plaintiff seemed to object to any testimony relating to the mental condition of the decedent. In the cross-examination of Dr. Mitchell, her son, this testimony occurs: “ Q. What was the condition of her mind ? A. Her mind wasn’t very good and hadn’t been for five or six years. Q. Is it not a fact that you had a committee appointed for her about the time of this occurrence? A. Immediately afterwards I did. Q. You had the court of common pleas appoint a committee over her, because her mind was weak ? Is that true ? (Objected to.) By Mr. Cochran: I will admit she had a guardian appointed — there was no committee appointed — because she was not able to take care of herself. By Mr. Gillespie: Because of weak mind? By the witness: No; she wanted somebody to take care of her she said. Q. Wasn’t it because she was of weak mind? A. Her mind wasn’t very strong.” Her mental incapacity was not dwelt upon by the witnesses for the plaintiff and no instructions in regard to it were asked by plaintiff’s counsel in their points. It is difficult to understand from the argument just what the appellant desired the court to say in regard to her mental incapacity and, whether mentally capable or not, the defendant would scarcely have been justified in taking the decedent away from the house of her son during her last illness under the circumstances. We have read the entire charge, first in the general perusal of the paper-book and subsequently with reference to the tenth assignment of error, which asserts the prejudicial character of the charge to the plaintiff’s claim, but have failed to see wherein the complaint is justified. The case was clearly and fully presented to the jury, the plaintiff’s points for charge were all affirmed, and both the points of the plaintiff which were affirmed related to the simple proposition that there could be no recovery on the part of the plaintiff, unless the defendant had failed in the duty which he owed to the decedent to maintain her in accordance with the provisions of his bond.

Upon a careful consideration of the whole case, we can see nothing which calls for or would justify a reversal.

Judgment affirmed.