Allfree v. Rosenthal's Estate

• Decision Date: 09 July 1969
• Docket Number: Gen. No. 51961
• Citation: 251 N.E.2d 792,113 Ill.App.2d 90
• Parties: Villette ALLFREE, Claimant-Appellant, v. ESTATE of Frieda ROSENTHAL, Deceased, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 792

251 N.E.2d 792

113 Ill.App.2d 90

Villette ALLFREE, Claimant-Appellant, v. ESTATE of Frieda ROSENTHAL, Deceased, Defendant-Appellee.

Gen. No. 51961.

Appellate Court of Illinois, First District, Fourth Division.

July 9, 1969.

Rehearing Denied Aug. 20, 1969.

Black & Beermann, Chicago, for appellant.

John H. Hanson and Victor E. Karlsen, Chicago, for appellee.

ENGLISH, Justice.

This appeal is from denial of a claim against the Estate of Frieda Rosenthal in the amount of $6,500 (subsequently reduced by claimant to $4,000) for room, board, and personal services furnished to decedent during the five-year period from 1960 to the time of her death in September 1965. The theory of claimant's case is that there was an express understanding and agreement that decedent would pay a fair and reasonable price for those services, that price being $25 per week. A hearing was held without a jury, and at the close of claimant's case, the court, on defendant's motion, dismissed the claim. The court also denied claimant's motion to reconsider or, in the alternative, to grant a new trial.

First, we are concerned with Section 64(4) of the Civil Practice Act, which provides:

(4) Upon the trial of a proceeding in equiyt and in cases at law tried without a jury defendant may, at the close of plaintiff's case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence. * * * (Emphasis supplied.) Ill.Rev.Stat. (1965), ch. 110, § 64(4).

Claimant contends that on a motion such as the one in the instant case for a finding in favor of the estate at the close of claimant's case, the trial court must decide whether 'all of the evidence in favor of the claimant, taken to be true, together with all legitimate inferences, fairly tends to sustain the cause of action'; that the court has no right to pass on the credibility of the witnesses, or to consider the weight or the quality of the testimony, or any purported impeachment, citing Moldenhauer v. Krynski, 62 Ill.App.2d 382, 210 N.E.2d 809, and Continental Ill. Nat'l. Bank & Trust Co. of Chicago v. National Casket Co., 27 Ill. App.2d 447, 169 N.E.2d 853.

The Moldenhauer case is inapplicable because it involved a jury trial. The opinion in the Continental Bank case did approve the proposition for which claimant contends, but it makes no mention of the statute quoted above and expressly relies upon a number of cases, all of which preceded the 1955 amendment of the statute which added the sentence directing the court to 'weight the evidence.' Our assumption is that the attention of the court in the Continental Bank case had not been directed to the statutory change. The legislative intent seems to us perfectly clear and directly contrary to claimant's contention. See Miller v. Heller, 106 Ill.App.2d 383, 392--393, 246 N.E.2d 150, and Brubaker v. Gould, 34 Ill.App.2d 421, 440--450, 180 N.E.2d 873. From this viewpoint, therefore, we shall review claimant's evidence.

Claimant testified that she had known the decedent for fifteen or twenty years. Further testimony as to the relationship between claimant and decedent was objected to on the basis of the 'Dead Man's Act.' Ill.Rev.Stat. (1965), ch. 51, § 2. The objections were properly sustained. Mayo v. Mayo,302 Ill. 584, 135 N.E. 90; Estate of Moore, 310 Ill.App. 365, 33 N.E.2d 130; Estate of Niehaus, 341 Ill.App. 454, 94 N.E.2d 525.

Sam Gerhardt testified that he was the janitor in the building where decedent had lived for twenty-one years. He had known her for sixteen years and had had frequent conversations with her. In 1960, she had gone to live with claimant, although she did not then remove her furniture from the apartment. He and his wife had visited decedent at claimant's apartment two or three times and she had visited them six or eight times. In 1962, just before decedent did have her furniture moved, he had a conversation with decedent in the presence of claimant. During this conversation, claimant told him that decedent was not giving her any money and she (decedent) wanted to move back. He said that decedent couldn't live alone and that the only alternative to her living with claimant was to put her in a county convalescent home, which would be more expensive. Decedent stated that she had money, and they parted with the understanding that she would pay claimant $25 a week for her room and services. Decedent lived with claimant until her death. She had seemed to be in fair health for a woman her age, seldom going to doctors or dentists.

Mrs. Kathryn Gerhardt testified that she became acquainted with claimant through several visits made with decedent. Decedent lived her last five years with claimant, who cooked for her and accompanied her to a doctor and a dentist. Decedent took her meals with claimant and she did little housework. Many times she was unable to do anything but 'go out of the house and go to the store.' On one occasion, the witness saw decedent have an epileptic fit, and she stayed with her for a half hour.

Claimant was not related to decedent. When there is no family relationship, such a claim may be allowed upon a showing of either an express or an implied contract or obligation on the part of the decedent. An express contract may be proved by an actual agreement, by direct evidence, by the express words used by the parties, and also by circumstantial evidence. Rush v. Estate of Rush, 27 Ill.App.2d 242, 246, 169 N.E.2d 538. To recover under an...