Rogers v. Daniels

Mr. Justice Puterbaugh delivered the opinion of the court. This is an action in assumpsit, by appellee against appellant, to recover the value of services rendered by appellee to a son of appellant. Upon a trial in the Circuit Court the jury returned a verdict for the plaintiff and assessed her damages at $350. The court upon a motion for a new trial required the plaintiff to remit $68 and then rendered judgment for $282, from which the defendant appeals. The evidence tends to show that in March, 1903, Dick Rogers, an adult son of appellant, and who was at the time seriously ill, was taken to the home of appellee, where he remained, with the exception of several brief intervals, until his death, in September of that year. While there he was boarded, nursed and cared for by appellee, who also did his laundry work and furnished him with such fruits and delicacies as he desired. She was in no way related to either Dick or appellant. It is insisted that the judgment is excessive. We think the amount of the judgment is fully warranted by the evidence. During the greater part of the time, the deceased was seriously ill and required constant and careful nursing and attention. His illness was of such a character as to necessitate the performance of services of a disagreeable .nature. The other questions of fact involved were as to whether appellant agreed to pay for the services rendered and whether at the time he is alleged to have done so he had sufficient mental capacity to enter into a contract. The evidence introduced by appellee upon these questions, while in direct conflict.with that offered by appellant, was, we think, clearly sufficient to warrant a verdict for appellee. It is urged as ground for reversal that the court refused to admit proper evidence offered by appellant. On the trial appellant offered in evidence a letter written by Walter Dysert, one of the attorneys for appellee, to Richard Rogers, a brother of Dick, on December 15, 1903, which it was claimed tended to prove that at that time appellee looked to Bichard, and not to appellant, for her compensation. He also offered to show by Dysert that he had express authority from.appellee to write the letter. The court properly refused to permit Dysert to testify as to any conversations with appellee upon the subject, on the ground that what was said between them constituted privileged communications. The rule as to privileged communications extends to every communication which the client makes to his legal adviser for the purpose of professional advice or aid upon the subject of his rights and liabilities, and it is not essential that any judicial proceedings in particular should have been commenced or contemplated. It is enough if the matter in hand may, by possibility, become the matter of judicial inquiry. Greenleaf Ev. 280; Weeks on Law Counselors, 378. In the absence of competent proof that Dysert was expressly authorized to write the letter, or that appellee ratified the same, it was properly excluded. Appellant contends that the eighth instruction given for plaintiff and the fifth instruction given for defendant, are in conflict, and that as it cannot be known which one the jury followed, the judgment should for that reason alone be reversed. The eighth instruction correctly stated the law. The fifth instruction was inconsonant with it in that it stated the law too favorably to appellant, who could not have been prejudiced thereby. ■Complaint is made of the rulings of the court upon other instructions. Without discussing them in detail we will say that we have examined them and are of opinion that the action of the court thereon was proper. The motion for a new trial was properly overruled. The newly discovered evidence set out in the affidavit in support thereof would tend only to impeach appellee’s testimony. The judgment of the Circuit Court will be affirmed. Affirmed.