Respondent sued1 appellant as administrator of the estate of James, deceased, upon four causes of action: '‘First, for money expended by plaintiff for railroad fare upon request of decedent in 1910, in traveling to Columbus, Ohio; second, for services rendered decedent as nurse, at Columbus, Ohio; third, for board and room furnished decedent’s wife in 1911; fourth, for board and room and services as nurse furnished the wife of decedent in her last illness between December, 1913, and February, 1914. The answer is a general denial to the four causes of action and an allegation that as to the second, third, and fourth the ■services and the board and lodgings specified were furnished gratuitously to the persons named, as relatives and friends, and without expectation of pay therefor. A jury was waived, and the trial court entered findings and1 judgment for plaintiff on all four causes of action. Defendant appeals from the judgment and an order overruling a motion for a new trial.
[1] 'Plaintiff called as a witness, to prove -her services as a nurse, and the value thereof, a physician who attended deceased during his illness at Columbus, Ohio, in 1911, and for the same purpose called the physician who attended the wife of decedent during her last illness at plaintiff’s home in Flandreau. Appellant objected to this testimony on the ground that a physician is not
“A- physician or surgeon cannot, without the consent of his patient, foe examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”
We deem it wholly unnecessary to> review or discuss the numerous decisions under similar statutes, cited by appellant. The general -policy of these statutes is well understood. It is sufficient to observe that these physicians testified only to the general character and value of the services rendered by plaintiff as a nurse, and were not examined and did not testify to- any information acquired in attending their patients, necessary to enable them to prescribe or act for such patients. Booren v. McWilliams, 26 N. D. 558, 145 N. W. 410, Ann. Cas. 1916 A, 388; Armstrong v. Railroad Co., 93 Kan. 493, 144 Pac. 847; Carmody v. Tract. Co., 43 App. D. C. 245, Ann. Cas. 1916D, 706; 45 Cyc. 2384; Johnson v. Shaver, 37 S. D. 397, 158 N. W. 735.
[2] Appellant’s most strenuous contention is that the expenditures made and the services rendered were gratuitious, and that the evidence is sufficient to sustain a ■ recovery. The expenditure • of money sued for and the rendition of the services and their value -are undisputed. Appellant’s contention is founded wholly upon the alleged family relationship ■ between plaintiff and the decedent, James, and his wife. Clara James was a sister of Archie Higgs, plaintiff’s husband. The decedent, Walter H. James, and his wife resided in Columbus, Ohio, in 191T, and later moved to- California, where they resided and had their home as long as they lived. Plaintiff was a trained nurse, though not regularly engaged in that work while living at her home. In January, 1910, decedent, Walter H. James, was suffering from a protracted illness at his home in Columbus, Ohio. Early in January, plaintiff went to Columbus, and between January 7, and Mlarch 10, 1910, at the home of Walter H. James, nursed and cared for -him during his illness. About the 1st of May, 1911, Clara James, wife of Walter H. James, came to- the home of plaintiff in Elandreau, for the purpose of looking after his prop
There is not a scintilla of evidence in the record from which it could be inferred that these services- might have been intended to be gratuitous, if the parties had been strangers. It is appellant’s contention, however, that the relationship shown to exist between the parties was such as to rebut' the presumption of an implied contract to pay therefor. It is sufficient to observe that the relationship disclosed by the record- is not such as to constitute any evidence whatever that the services' rendered were intended to be gratuitous. The circumstances of illness and of business interests on the part of the Jameses at Flandreau, and- the fact that plaintiff and her husband were required to pay for board and lodging at the James’ home in California, plainly rebut any presumption
[3] The record discloses that plaintiff was a married woman living with and supported by her husband when the transactions sued upon occurred. It is appellant’s contention that, inasmuch as plaintiff was a married woman living with and being supported by her -husband in his own home, the right of action upon these claims for services and board originally accrued to and vested in her husband, Archie Higgs, and not in plaintiff, and that the trial court therefore erred in permitting Archie Higgs to testify to the conversation with decedent, James ,at his home in California, in which James acknowledged his indebtedness to plaintiff and his intention to pay for the services referred .to in the first three causes of action. Subdivision 2, § 486, Code of Civil Procedure, provides :
“In civil actions or proceedings by or against executors, administrators * * * neither party, nor his assignor, nor any person who has or ever had any interest in the subject of the action adverse to the other parties, or to his testator or intestaie, shall be allowed to testify against such -other party as to any transaction whatever with or statement by the testator or intestate. * * *”
It must be conceded that if plaintiff’s husband, Archie Higgs, has or ever had any interest in the subject-matter of these causes of action, the trial court erred in permitting him to'testify to the statements of James above referred to. But no- question is presented by the record as to plaintiff’s right to- maintain this action at the time it was commenced; the interest of the husband being urged only as a fact -disqualifying him as a witness. It was not attempted to prove an express contract between plaintiff ánd decedent. The right to recovery, if it existed, must therefore rest upon implied contract. We are entirely satisfied that decedent
[14] Furthermore, it will be presumed upon a trial to the court that such evidence, if incompetent, was disregarded. Re McClellan, 20 S. D. 498, 107 N. W. 681; Easton v. Cranmer, 19 S. D. 224, 102 N. W. 944; Mead v. Mellette, 18 S. D. 523, 101 N. W. 335; Bowdle v. Jencks, 18 S. D. 80, 99 N. W. 98; McKinnon v. Fuller, 33 S. D. 582, 146 N. W. 910.
Numerous errors are assigned upon the record, but the foregoing disposes of all of them which we deem of sufficient importance to merit discussion. The judgment and order of the trial court are affirmed.