119 P.2d 277 (Or. 1941), In re Herdman's Estate

Citation:119 P.2d 277, 167 Or. 527
Opinion Judge:[167 Or. 529] LUSK, Justice.
Party Name:In re HERDMAN'S ESTATE. v. HERDMAN. SIGMAN
Attorney:[167 Or. 529] Fred W. Bronn and William G. Dunlap, both of Portland, for appellant. D. P. Price, of Portland (Joe P. Price, of Portland, on the brief), for respondent.
Judge Panel:[167 Or. 528] Before KELLY, C.J., and BAILEY, LUSK, RAND, and BRAND, JJ.
Case Date:November 25, 1941
Court:Supreme Court of Oregon
 
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Page 277

119 P.2d 277 (Or. 1941)

167 Or. 527

In re HERDMAN'S ESTATE.

SIGMAN

v.

HERDMAN.

Supreme Court of Oregon

November 25, 1941

         Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

         Proceeding in the matter of the estate of Fred M. Herdman, deceased, by Elizabeth M. Sigman against Agnes Thompson Herdman, executrix of the estate of Fred M. Herdman, deceased, to establish a claim against estate for the reasonable value of services as a housekeeper rendered the decedent. From a judgment rejecting her claim, plaintiff appeals.

         Judgment reversed and cause remanded.

Page 278

         [167 Or. 529] Fred W. Bronn and William G. Dunlap, both of Portland, for appellant.

         D. P. Price, of Portland (Joe P. Price, of Portland, on the brief), for respondent.

         [167 Or. 528] Before KELLY, C.J., and BAILEY, LUSK, RAND, and BRAND, JJ.

         [167 Or. 529] LUSK, Justice.

         This is an appeal from a judgment of the circuit court, department of probate, rejecting the claim of Elizabeth M. Sigman for the reasonable value of services as a housekeeper against the estate of Fred M. Herdman, deceased.

         The decedent was a resident of Portland. The plaintiff, Mrs. Sigman, was his sister. On June 15, 1933, the decedent's wife died suddenly, and, in response to his request by telegram, Mrs. Sigman came to Portland from her home in Los Angeles and thereafter until October, 1938, when Herdman remarried, served him as his housekeeper. She testified that her brother many times promised to pay her for these services. J. A. Herdman, brother of the deceased, who lived with him during the period in question, corroborated the claimant both as to the nature and extent of the services rendered and the decedent's promise to compensate for them. There was also expert testimony tending to show the reasonable value of the services.

         At the conclusion of the plaintiff's case the defendant moved for a judgment of involuntary nonsuit. The court thereupon rendered an oral decision indicating disbelief in the claimant's testimony, and subsequently entered an order which did not in terms allow the [167 Or. 530] defendant's motion but recited "that claimant failed to prove her claim against said estate by sufficient evidence" and ordered that the claim "be and the same is hereby rejected".

         This proceeding is in the nature of an action at law. Turner v. Schlegel, 163 Or. 367, 97 P.2d 723. A motion for a nonsuit admits not only all that the evidence proves but all that it tends to prove. The evidence given for the plaintiff must be taken to be true, together with every inference of fact which the jury might legally draw from it. Lamm v. Silver Falls Timber Co., 133 Or. 468, 523, 277 P. 91, 286 P. 527, 291 P. 375; Farrin v. State Industrial Accident Commission, 104 Or. 452, 461, 205 P. 984; Herrick v. Barzee, 96 Or. 357, 371, 190 P. 141; Brown v. Oregon Lumber Co., 24 Or. 315, 317, 33 P. 557. The rule is no different when the trial is before the court without a jury. 64 C.J., Trial, 1213, § 1028. Hence, while a trier of the facts might reasonably say, as the court did, that it is not probable that one having a claim for money against another would wait until after the alleged debtor's death before asserting the claim, it was not the function of the court to weigh the evidence at that stage of the case, but to pass on the motion for nonsuit in the light of the rules which have been stated. Therefore, we treat the court's order as a judgment of involuntary nonsuit and as such determine whether or not it was erroneous.

         The corroborating evidence, in our opinion, was clearly sufficient to satisfy the requirements of 2 O.C.L.A. § 19-704. The defendant's attack on that evidence is aimed solely at its weight, not its legal sufficiency to withstand a motion for nonsuit.

         The defendant contends that it must be held as a matter of law that the executor properly rejected the [167 Or. 531] claim because it shows on its face the relationship of brother and sister between the decedent and the plaintiff and does not allege an express contract but only facts from which a promise to compensate for the services might be inferred. Defendant cites Wilkes v. Cornelius, 21 Or. 348, 28 P. 135...

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