CROCKETT, Justice.
Eliza Startin, sister of the decedent James Madsen, sued his estate for services rendered in giving personal care, housekeeping, practical nursing and supplying food and provisions to him for six years just prior to his death. A jury awarded her $4200.
Defendant appeals, claiming the trial court erred: (1) in permitting plaintiff to give certain testimony in violation of the so-called dead man’s statute; (2) allowing the jury to consider the value of services performed for Mrs. Madsen (wife of deceased) ; (3) allowing the jury to consider the value of services performed by others in assisting plaintiff; (4) failing to give certain instructions as to defendant’s theory of the case, and certain cautionary instructions; and (5) allowing the jury to find the verdict when there was no competent evidence as to the value of plaintiff’s services.
Although some of the evidence was controverted, the following is a fair summary of the facts established: James Madsen, brother of plaintiff and defendant, died at 88, having been bedridden and in need of close personal care for the previous six years. His aged wife, Priscilla, was able to do some household tasks the fore part of this period, [634]*634but was in need of some care and assistance herself, particularly during the last two years when her memory completely failed her. Plaintiff lived about two blocks away. Her husband also was very ill during part of this time, and although she had to divide her attention between her own home and that of the Madsens, she nevertheless prepared meals for the Madsens, first at their home, and later for several years at her own home, carrying them the two blocks three times daily. Assisted somewhat by her daughter and daughter-in-law, she prepared these meals, bought provisions, cleaned the Madsen home, washed their clothes and linens, bathed Mr. Madsen, changed his bedding, gave him medicine when needed, and otherwise provided comfort and necessaries principally to Mr. Madsen and partially to Mrs. Madsen. Her services became increasingly burdensome as the Madsens grew older. Plaintiff’s other brother, defendant herein, and his son also assisted the Madsens some. Upon those facts, the jury verdict of $4200 was rendered.
We discuss the errors assigned in the order listed above:
The so-called dead man’s statute, Sec. 104-49-2, U. C. A. 1943, so far as here material, provides that no person asserting a claim adverse to the estate shall testify to any matter of fact equally within the knowledge of the witness and the deceased. In Burk v. Peter, 115 Utah 58, 202 P. 2d 543, this court recognized that there is a waiver of the incompetency to testify created by this statute where the deceased’s representative or witnesses called on behalf of the estate testifies, and to the extent which such witnesses testify as to facts or transactions, testimony otherwise prohibited by the statute may be received. The limitation is that the incompetency is waived only as to the particular matter opened up by the personal representative or his witnesses. The testimony of the plaintiff complained of in the present case involved a description of decedent’s physical condition and need for assistance during the period of his illness, the amount of assistance rendered by the [635]*635plaintiff, and the question of whether plaintiff had been compensated therefor. In an effort to minimize the services rendered and the need for assistance on the part of the deceased, and to show payment for any services rendered by the plaintiff, these matters were fully covered in defendant’s testimony. Accordingly, the executor waived the incompetency of the plaintiff and it was therefore proper to permit her to testify as to these matters in rebuttal.
There was no error in allowing the jury to include the value of services rendered to Priscilla Madsen, wife of the deceased, since nothing furnished to Priscilla in this case could be construed to be anything but necessaries, the expense of which her husband and his estate are obliged to pay. County of Brown v. Siebert, 175 Minn. 39, 220 N. W. 156.
Likewise, it was not error to permit the jury to charge Madsen’s Estate with help others gave plaintiff in performing her duties to the Madsens. The benefit of any assistance procured by her would inure to her and not to the decedent unless it were expressly made to appear that such was the intent of the parties.
It seems unnecessary and inadvisable to treat in detail the assigned errors relating to the giving and refusal to give instructions. The instructions should not be susceptible of misconstruction as either comments on the evidence or arguments for either side of the case. It was the duty of the court to cover the theories of both parties in his instructions. Martineau v. Hanson, 47 Utah 549, 155 P. 432; McDonald v. Union Pacific R. Co., 109 Utah 493, 167 P. 2d 685. If the instructions are considered as a whole, as they must be, Walkenhorst v. Kesler, 92 Utah 312, 67 P. 2d 654; Redd v. Airway Motor Coach Lines, 104 Utah 9, 137 P. 2d 374, the court adequately discharged this duty and fairly presented the issues to the jury.
Finally, we approach the problem which seems to be of critical importance in the case, that is, defendant’s conten[636]*636tion that the judgment cannot stand because there is no competent evidence of value of plaintiff’s services.
We must keep uppermost in mind the provision of our statute, Sec. 104-14-7, U. C. A. 1943:
“The court must * * * disregard any error * * * which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
See Rule 61 U. R. C. P. to the same effect. Before the appellant is entitled to prevail, he must show both error and prejudice; that is, that his substantial rights are affected and that there is at least a fair likelihood that the result would have been different. Boyd v. San Pedro, L. A. & S. L. R. Co., 45 Utah 449, 146 P. 282. Even if incompetent evidence is admitted, unless it is harmful to defendant, it is not ground for reversal. Thomas v. Ogden Rapid Transit Co., 47 Utah 595, 155 P. 436. See also In re McCoy’s Estate, 91 Utah 212, 63 P. 2d 620; Christensen v. Johnson, 90 Utah 273, 61 P. 2d 597; and Davis v. Heiner, 54 Utah 428, 181 P. 587.
Being aware of that thought, we consider the contention regarding the insufficiency of evidence of value. The only such evidence in the record was the testimony of one Mrs. Mary Hopkins, which defendant assails as incompetent. She first identified herself as a practical nurse of 27 years experience in that county (Utah County) ; she testified that she thought she would be acquainted with charges made in Provo, the County seat, for practical nursing. Over the objection of counsel for the defendant, she was allowed to answer the following hypothetical question:
“In the event you were called into a case where an aged person was bedridden and you had to give them a service of bathing them and changing their bedding and getting their meals and giving them their medicine and watching them through the day would you have an opinion as to what the charge would be?”
[637]
Free access — add to your briefcase to read the full text and ask questions with AI
CROCKETT, Justice.
Eliza Startin, sister of the decedent James Madsen, sued his estate for services rendered in giving personal care, housekeeping, practical nursing and supplying food and provisions to him for six years just prior to his death. A jury awarded her $4200.
Defendant appeals, claiming the trial court erred: (1) in permitting plaintiff to give certain testimony in violation of the so-called dead man’s statute; (2) allowing the jury to consider the value of services performed for Mrs. Madsen (wife of deceased) ; (3) allowing the jury to consider the value of services performed by others in assisting plaintiff; (4) failing to give certain instructions as to defendant’s theory of the case, and certain cautionary instructions; and (5) allowing the jury to find the verdict when there was no competent evidence as to the value of plaintiff’s services.
Although some of the evidence was controverted, the following is a fair summary of the facts established: James Madsen, brother of plaintiff and defendant, died at 88, having been bedridden and in need of close personal care for the previous six years. His aged wife, Priscilla, was able to do some household tasks the fore part of this period, [634]*634but was in need of some care and assistance herself, particularly during the last two years when her memory completely failed her. Plaintiff lived about two blocks away. Her husband also was very ill during part of this time, and although she had to divide her attention between her own home and that of the Madsens, she nevertheless prepared meals for the Madsens, first at their home, and later for several years at her own home, carrying them the two blocks three times daily. Assisted somewhat by her daughter and daughter-in-law, she prepared these meals, bought provisions, cleaned the Madsen home, washed their clothes and linens, bathed Mr. Madsen, changed his bedding, gave him medicine when needed, and otherwise provided comfort and necessaries principally to Mr. Madsen and partially to Mrs. Madsen. Her services became increasingly burdensome as the Madsens grew older. Plaintiff’s other brother, defendant herein, and his son also assisted the Madsens some. Upon those facts, the jury verdict of $4200 was rendered.
We discuss the errors assigned in the order listed above:
The so-called dead man’s statute, Sec. 104-49-2, U. C. A. 1943, so far as here material, provides that no person asserting a claim adverse to the estate shall testify to any matter of fact equally within the knowledge of the witness and the deceased. In Burk v. Peter, 115 Utah 58, 202 P. 2d 543, this court recognized that there is a waiver of the incompetency to testify created by this statute where the deceased’s representative or witnesses called on behalf of the estate testifies, and to the extent which such witnesses testify as to facts or transactions, testimony otherwise prohibited by the statute may be received. The limitation is that the incompetency is waived only as to the particular matter opened up by the personal representative or his witnesses. The testimony of the plaintiff complained of in the present case involved a description of decedent’s physical condition and need for assistance during the period of his illness, the amount of assistance rendered by the [635]*635plaintiff, and the question of whether plaintiff had been compensated therefor. In an effort to minimize the services rendered and the need for assistance on the part of the deceased, and to show payment for any services rendered by the plaintiff, these matters were fully covered in defendant’s testimony. Accordingly, the executor waived the incompetency of the plaintiff and it was therefore proper to permit her to testify as to these matters in rebuttal.
There was no error in allowing the jury to include the value of services rendered to Priscilla Madsen, wife of the deceased, since nothing furnished to Priscilla in this case could be construed to be anything but necessaries, the expense of which her husband and his estate are obliged to pay. County of Brown v. Siebert, 175 Minn. 39, 220 N. W. 156.
Likewise, it was not error to permit the jury to charge Madsen’s Estate with help others gave plaintiff in performing her duties to the Madsens. The benefit of any assistance procured by her would inure to her and not to the decedent unless it were expressly made to appear that such was the intent of the parties.
It seems unnecessary and inadvisable to treat in detail the assigned errors relating to the giving and refusal to give instructions. The instructions should not be susceptible of misconstruction as either comments on the evidence or arguments for either side of the case. It was the duty of the court to cover the theories of both parties in his instructions. Martineau v. Hanson, 47 Utah 549, 155 P. 432; McDonald v. Union Pacific R. Co., 109 Utah 493, 167 P. 2d 685. If the instructions are considered as a whole, as they must be, Walkenhorst v. Kesler, 92 Utah 312, 67 P. 2d 654; Redd v. Airway Motor Coach Lines, 104 Utah 9, 137 P. 2d 374, the court adequately discharged this duty and fairly presented the issues to the jury.
Finally, we approach the problem which seems to be of critical importance in the case, that is, defendant’s conten[636]*636tion that the judgment cannot stand because there is no competent evidence of value of plaintiff’s services.
We must keep uppermost in mind the provision of our statute, Sec. 104-14-7, U. C. A. 1943:
“The court must * * * disregard any error * * * which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
See Rule 61 U. R. C. P. to the same effect. Before the appellant is entitled to prevail, he must show both error and prejudice; that is, that his substantial rights are affected and that there is at least a fair likelihood that the result would have been different. Boyd v. San Pedro, L. A. & S. L. R. Co., 45 Utah 449, 146 P. 282. Even if incompetent evidence is admitted, unless it is harmful to defendant, it is not ground for reversal. Thomas v. Ogden Rapid Transit Co., 47 Utah 595, 155 P. 436. See also In re McCoy’s Estate, 91 Utah 212, 63 P. 2d 620; Christensen v. Johnson, 90 Utah 273, 61 P. 2d 597; and Davis v. Heiner, 54 Utah 428, 181 P. 587.
Being aware of that thought, we consider the contention regarding the insufficiency of evidence of value. The only such evidence in the record was the testimony of one Mrs. Mary Hopkins, which defendant assails as incompetent. She first identified herself as a practical nurse of 27 years experience in that county (Utah County) ; she testified that she thought she would be acquainted with charges made in Provo, the County seat, for practical nursing. Over the objection of counsel for the defendant, she was allowed to answer the following hypothetical question:
“In the event you were called into a case where an aged person was bedridden and you had to give them a service of bathing them and changing their bedding and getting their meals and giving them their medicine and watching them through the day would you have an opinion as to what the charge would be?”
[637]*637She answered that she would charge $7.00 per day for one patient or $50.00 per week for two, in addition to her board, room and laundry.
It must be said that we do not defend nor justify the way in which the question was put except to say that the record shows that the witness was exceedingly difficult to get any evidence from.
With respect to the question of proof of value of the services of plaintiff, we assert the following propositions:
(1) The services rendered were of such a nature that the jury could have assessed the reasonable value thereof without any special evidence of such value; (2) Even if it should be conceded that the testimony of the witness Mrs. Hopkins was incompetent, it was not prejudicial to the defendant; (3) Her testimony, although not of the most desirable quality, was not wholly incompetent.
Let us take a look at the general aspect of this case and the verdict which we are asked to overturn. The jury found the issues for the plaintiff and we, therefore, assume that they believed her evidence. She rendered the services over a period of six years, approximately 2,190 days. She was awarded $4,200, about $1.92 per day. A jury is made up of practical people who have common sense and judgment. They were entitled to take into consideration their knowledge acquired in the every day affairs of life in placing a value upon these services. In 58 Am. Jur. “Work and Labor”, Sec. 63, p. 560, it is stated:
“* * * jury may. from theij. knowledge of business and the value of labor, in assumpsit for work and labor, find a verdict for the value of the work done upon request without an express contract, notwithstanding there is no evidence of the worth of labor at the time and place the work was performed.” (Emphasis added.)
This rule would apply to the type of work the plaintiff did. The term “practical nurse” is just another name for ordinary housekeeping and the personal care and attention which every one gives to sick people in their own homes; [638]*638that is, to prepare the meals, feed, bathe, clothe, change their clothing and their bedding and attend to their needs. There is nothing particularly technical nor professional about it. Every person of ordinary intelligence and understanding knows what that work consists of and has some idea as to its value. Surely, it was worth $1.92 per day if it were worth anything.
The testimony of Mrs. Hopkins was to the effect that such services were reasonably worth $7 per day. On that basis for six years the verdict would have been for $15,330. And even if such an award had been only for two and one-half years, the shortest possible time for which any award at all could have been made even under the defendant’s evidence, the amount would have been $6,384. It is obvious that the jury did just what it is entitled to do; used ordinary prudence and judgment in assessing the damages. They plainly did not base their verdict on the evidence of Mrs. Hopkins at all and such evidence was in no way prejudicial to the defendant. For that reason, there should be no reversal.
Let us now, as an additional proposition, consider the competency of Mrs. Hopkins’ testimony. She was called as an expert to give evidence regarding the value of the services. Although her testimony was as to what she personally would charge, the only reasonable inference from her evidence is that her charges would be the ordinary and reasonable charges for such services in that locality because she certainly would not be testifying that she charged any unreasonable amount. It would comport with common sense and reason to allow the jury the latitude to infer from her testimony that the charges she personally made were the ordinary, usual and reasonable ones being made for such service according to her knowledge.
Just who is and who is not an expert, and the requisites and qualifications thereof, are matters which are relative to the facts of the particular case, and the subject upon which the witness is called to give testi[639]*639mony. See II Wigmore on Evidence, 3d Ed. Sec. 555, for a discussion on this subject. He says at p. 634:
“The capacity is in every case a relative one, i. e. relative to the topic about which the person is asked to make his statement. The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it * * *”
At p. 640, Sec. 559, he announces the rule:
“* * * special experience shall be required unless the matter to be testified to is one upon which it would clearly be presumptuous, under the circumstances of the case, for a person of only ordinary experience to assume to trust his senses, for the purposes of his own action in the ordinary serious affairs of life.”
Mr. Wigmore further points out that experts may vary greatly as to the degree of expertness and that if the evidence isn’t particularly good the opponent may by cross-examination expose its meager quantity or poor quality. In Mussinon's Adm’r v. Herrin, 252 Ky. 495, 67 S. W. 2d 710, 714, the plaintiff had cared for the decedent for 11 years, both when she was sick and well, and had helped pay bills, etc. On appeal, it was contended that the trial court erred in allowing evidence of certain witnesses to come in relating to the value of the services rendered. Said the court:
“* * * certain witnesses were asked to state the value of these services, and they would preface their answer by saying, ‘I hardly know,’ and other expressions of similar meaning, but finally gave their opinion as to the value of the services. This was not a subject on which expert testimony was required or necessary, and the fact that the witnesses did not technically qualify is not material. The value of such services rendered by appellee is a matter of common knowledge, and the jury, no doubt, were as able to place a value on these services as the witnesses were. We do not deem this testimony prejudicial to the substantial rights of appellant.”
In Craig v. Toteve, 107 Colo. 254, 110 P. 2d 1117, it was contended that the testimony of a practical nurse as to the reasonable value of services of those in that profession was [640]*640erroneous where she hadn’t been engaged in that profession for about three years, although she had previously been so engaged for a long time. The court correctly observed that the objection went only to the weight of the evidence and not to its competency. In First National Bank v. Owen, 177 Miss. 339, 171 So. 4, 6, the court in speaking of similar services, said:
“Facts in respect to services of this kind and knowledge of the value thereof are such as come within the general experience and observation of all sensible persons, and it requires no skilled or expert witness to give evidence in regard thereto.” (Emphasis added.)
See also In re Estate of Baker, 144 Neb. 797, 14 N. W. 2d 585; In re Dvorak’s Estate, 213 Iowa 250, 236 N. W. 66; Wandling v. Broaddus, Mo., 10 S. W. 2d 651. 20 Am. Jur., Evidence, Sec. 386, p. 349, states the rule:
“In an action to recover the value of services rendered under an implied contract, evidence of what others received for like services may properly be considered.”
Under the above authorities, Mrs. Hopkins was properly permitted to testify as to how she would evaluate the services described to her in terms of what she would charge for similar work. Her testimony, although it may not have been just what one might desire, is not entirely incompetent and valueless. If she had actually lacked knowledge of the charges generally made for such work in that locality, the defendant certainly could have laid that fact bare by cross-examination. This he declined to do, apparently not wanting to bolster up the weakness in the plaintiff’s evidence. Perhaps the defendant should not be censured for not doing so, but to the court this lawsuit is something more than a game of wits. A reversal would serve no useful purpose except to further delay the payment to this elderly lady of money to which a jury has found that she was justly entitled for taking care of the decedent when he was in dire need of her services and when [641]*641others found it convenient to leave such duties to her. In considering the question of this evidence on the motion for a new trial, the trial judge frankly expressed his opinion that he committed error in receiving the testimony, but upon mature reflection did not believe that it resulted in prejudice to the defendants. We agree that there was no prejudice and therefore affirm the judgment. Costs to respondent.
WADE, J., concurs.