Ashley v. Williams
| Decision Date | 12 September 1955 |
| Docket Number | No. 44633,No. 2,44633,2 |
| Citation | 365 Mo. 286,281 S.W.2d 875 |
| Parties | George G. ASHLEY, Respondent, v. Paul G. WILLIAMS, Administrator of the Estate of George W. Minnick, Deceased, Appellant |
| Court | Missouri Supreme Court |
Thompson & Thompson, Richmond, for appellant.
Russell D. Earris, Eugene A. Farris, Wilson D. Hill, Richmond, for respondent.
The plaintiff, George G. Ashley, filed his claim in probate court against the decedent estate of his father-in-law, George W. Minnick, to recover the reasonable value of services rendered to Mr. Minnick during the last years of his life, a period of about eight years. The claim was certified to circuit court where a jury returned a verdict for $12,000 in favor of plaintiff. From the judgment rendered thereon the defendant, Paul G. Williams, administrator of the estate of George W. Minnick, deceased, has taken this appeal.
George W. Minnick had been a widower for many years. He had four living children, two sons and two daughters. He owned a 47 acre farm in Clay County just across the Ray County line, on which he had lived in recent years. A son, William Orville Minnick, and his wife lived on the farm with him for a period of about three and a half years. Orville's wife wanted to go back to the Ozarks where she had a farm, so Orville and she moved away in March, 1943. Thereafter the farm and its improvements were rented for cash or shares of the crops. Mr. Minnick continued to live on the farm alone, cooking his own meals, until October, 1945. One daughter, Allie, married to the plaintiff, George G. Ashley, lived with her husband and their family on a farm about five and one-half miles southwest of Richmond in Ray County. In 1945 Mr. Minnick was 81 years of age, and it had become apparent that he was no longer able to stay by himself. During the latter part of September Mr. Minnick talked with his daughter, Allie Ashley, about coming to live in the Ashley home. About a week later Mr. Minnick talked to George Ashley in Allie's presence about the same matter. Shortly thereafter, in early October 1945, he moved into the Ashley home where he lived until the time of his death on July 9, 1953. Although it is not clear as to the kind of her employment, it appears that while Mr. Minnick lived in the Ashley home Allie Ashley 'was out working, making a living' and she 'was bringing in the food to eat.' Further details of the evidence will be referred to in the course of the opinion.
Errors assigned are: (a) In permitting the witness, Allie Ashley, to testify to the terms of the contract with the deceased since defendant contended she was a party to the contract; (b) In not directing a verdict for the defendant for the reason that there is no substantial evidence that a contract existed between George Minnick and his son-in-law, George Ashley, to care for him for pay; (c) In permitting a practical nurse to testify in response to a hypothetical question with respect to the value of the services alleged to have been rendered by the plaintiff; (d) In giving and reading to the jury plaintiff's instruction No. 1, because it permitted recovery for the furnishing of food, washing of clothes and furnishing a home to defendant's decedent when there was no evidence of the value of such services, and further that it failed to limit the recovery to the services of nursing and caring for defendant's decedent, and that (e) The verdict of $12,000 is so grossly excessive as to shock the conscience of the court and to show that the discretion of the jury has been arbitrarily exercised and abused.
We will first consider the question of whether there is substantial evidence that there was a contract or mutual understanding that the plaintiff would be compensated for the services rendered by him to his father-in-law, George W. Minnick. For the reasons later referred to, all the evidence in this record on appeal may be considered in determining this issue. In reviewing this question, the evidence most favorable to the plaintiff must be accepted as true, the plaintiff must be given the benefit of all reasonable inferences arising from such evidence, and all evidence unfavorable to the plaintiff must be disregarded. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Sibert v. Boger, Mo., 260 S.W.2d 569. For numerous other cases, see Mo. Digest, Appeal and Error, k927, and Trial, k156.
The controlling evidence is that somewhere between the middle and the latter part of September, 1945, Allie Ashley talked to her father about his staying at the Ashley home, and he wanted to talk to the plaintiff, George Ashley, about it. Allie Ashley testified that 'we went back the following Sunday, and he [Mr. Minnick] talked to George, and he made a statement to George also.' Her father made an agreement with her and he also made a second agreement with her husband George. She heard the conversation between her father and her husband and her father told George that 'if it was all right with him, that he would come there and stay with, with him, and that he wanted him [George] to have what he had at his death' and 'that he [George] was to care for him' [Mr. Minnick]. Thereafter her father moved to the Ashley home where he stayed and was cared for by the plaintiff except for an interval that Mr. Minnick was in the hospital and at a nursing home when the plaintiff became ill. On cross examination, witness Allie Ashley testified that she did not present an account to her father because 'that lagreement was between my husband and my father,' and on redirect examination the witness testified without objection that her husband did not present an account or bill to her father during his lifetime because the agreement had been made 'between my husband and my father' before her father came to live with them, and that 'there had been a prior agreement.'
Walter Hicks testified that Mr. Minnick had told him that George and Allie were 'awful good to me' and that 'I made my will and I left everything to George and Allie.' Mrs. Walter Hicks testified that Mr. Minnick told her that he had done better than making a will, that he had made deeds out to George and Allie. Jack Spor testified that he had tried to buy the Minnick place and Mr. Minnick told him that he would not sell it because he intended for George Ashley and Allie to have it at his death. Silas M. Smith, another neighbor and friend, testified that Mr. Minnick had told him that he liked living with George and Allie and that he was well treated, and that when he was gone he wanted George and Allie to have what he had for taking care of him.
In view of this testimony and the other facts and circumstances in evidence, we hold that there was substantial evidence of an agreement or mutual understanding between the plaintiff and George W. Minnick that the plaintiff should be compensated for the services rendered to George W. Minnick, thereby rebutting the presumption arising out of the family relationship that the services were performed gratuitously. In the case of Nibler v. Coltrane, Mo., 275 S.W.2d 270, the agreement sued on was that the claimant, a niece, was to receive whatever property the survivor of two aunts should have at her death if the niece lived with them, remained unmarried, and performed certain services. The proof was held sufficient to overcome the presumption that the services in question were gratuitously rendered and to permit the plaintiff niece to recover the reasonable value of her services. See also Vosburg v. Smith, Mo.App., 272 S.W.2d 297; In re Stein's Estate, Mo.App., 177 S.W.2d 678; and Joseph v. Joseph, Mo.App., 164 S.W.2d 145. In support of his contention that there was no substantial evidence of an agreement to pay for the services rendered, the defendant cites the cases of Nelson v. Poorman's Estate, Mo.App., 215 S.W. 753; Trantham v. Gullic, Mo.App., 201 S.W.2d 522; Vosburg v. Smith, supra; and Roller v. Montgomery's Estate, Mo.App., 80 S.W.2d 246. In the Vosburg case the evidence was sufficient and a recovery permitted. In the other cases no agreement was proved nor were there facts or circumstances from which a jury could infer an agreement.
The defendant further contends that the evidence on the agreement to pay is so contradictory that 'it is equivalent of insufficient evidence,' citing cases typical of which is Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, at page 647, wherein it is stated: 'Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, no case is made, and the jury should not be permitted to speculate or guess which statement of the witness should be accepted. * * *' The testimony of Allie Ashley on the issue of whether there was an understanding or agreement that the plaintiff would be paid for the services he rendered to Mr. Minnick was not contradictory or conflicting. She consistently testified that her father did agree to pay for the services to be rendered. The uncertainty was whether plaintiff's compensation was to be a joint or a several interest in the property of the deceased. The defendant's theory and contention below was that there was only one contract and that the interest of the plaintiff and his wife under the contract was joint. This, however, was urged only as a reason for disqualification of the wife as a witness and not as grounds for dismissal because of the nonjoinder of the wife as a necessary party or other appropriate relief. Even if it be assumed that George Minnick stated that he wanted George and Allie to have whatever he had left for taking care of him, this did not necessarily mean or imply that they must have it jointly. T...
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