Woodward v. Bugsbee

We think the question, allowed by the referee to be put to Dr. Everett, was proper. He had testified that he was a physician; he had fully stated the diseases of the plaintiff’s intestate, and that the same were of the most aggravated description, so much so, as to be the subject of no standard price. In other words, he had testified *130that the deceased was so afflicted and was so loathsome as to be entirely exceptional. The case must have been left to the referee to determine on proof of facts, or the value of the services claimed must be proven. A referee, ordinarily, would have no especial knowledge of the value of such services; and, to prevent the failure of justice, it was necessary that the value should be proven; and where there is no market value, there can no better proof be given of the real value, than the opinion of the physician who knew the services and the nature of the sickness, and who knew the value of attendance upon the sick.

As to the objection that the services cannot be recovered without an express promise, having been performed by a sister to her brother, we think that principle not applicable to this case. The deceased was not a member of plaintiff’s family; he came to her house sick, and asked to be taken care of for a few days; he spoke of the plaintiff’s care and attention in the warmest terms, and spoke of paying her for the same by will, and even named the sum of $500 as the measure of value thereof.

The referee was justified in finding a promise, and the judgment should be affirmed, with costs.

Present—Barnard, P. J., Tapper and Talcott, JJ.

Judgment affirmed, with costs.