Baker v. Brown's Estate, 45119

Decision Date10 September 1956
Docket NumberNo. 2,No. 45119,45119,2
Citation294 S.W.2d 22,365 Mo. 1159
PartiesFlorence BAKER, Appellant, v. ESTATE of Mary Catherine BROWN, Deceased, Respondent
CourtMissouri Supreme Court

C. M. Hulen, C. M. Hulen, Jr., Moberly, Hess & Collins, Macon, for appellant.

Raymond L. Falzone, Moberly, W. F. Daniels, Fayette, James, Glenn, Macon, for respondent.

STORCKMAN, Judge.

The plaintiff, Florence Baker, filed a claim in the Probate Court of Randolph County against the estate of Mary Catherine Brown, deceased, in the sum of $29,760 based on nursing services, washing and ironing and board and room furnished Mary Catherine Brown over a period of almost three years prior to her death. In the probate court the claimant recovered $16,500 and the estate appealed. On trial de novo in the Circuit Court of Macon County, where the case was sent on change of venue, the jury returned a verdict of $7,500 in plaintiff's favor. Plaintiff's motion for a new trial was overruled and she appealed. Plaintiff will sometimes be referred to as the claimant and the defendant as the estate.

Since the plaintiff sued for $29,760 and recovered $7,500 and plaintiff's motion for a new trial alleging inadequacy of the jury's verdict was denied, the supreme court has jurisdiction of plaintiff's appeal because the amount in dispute is the difference between the amount sued for and the recovery. Constitution of Missouri 1945, Article V, Sec. 3, V.A.M.S.; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 482; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, 470.

The principal question on this appeal is whether the verdict of the jury is responsive to the evidence and instructions of the court and is so inadequate as to show a mistake of the jury or a disregard of the evidence and instructions.

Mary Catherine Brown and her sister, Amanda Brown, both spinsters, lived together on their farm about a mile or two southeast of Cairo in Randolph County until the death of Amanda. Mary Catherine sometimes known as Catty, was then about 82 years of age and unable to take care of her needs and look after herself properly. Within two days after Amanda's funeral on November 11, 1950, Mary Catherine, at her request, moved to the home of her cousin, Florence Baker, the claimant herein, where she lived until she died. The date of her death is not shown but she was buried on November 3, 1953.

Florence Baker lived in the country about six miles east of Cairo. Her bachelor son, Harland Baker, 38 years old at the time of trial, lived with her. There were no toilet facilities in the Baker home and the evidence shows that Mary Catherine Brown 'never set foot on the ground' from the time she went to live with the claimant. She was assigned a room in the house and was cared for from that time on by the claimant, Florence Baker, with the assistance of her son, Harland Baker.

Mary Catherine was feeble and needed assistance at all times while she lived at the claimant's home. During the early part of her stay she was able to come to the table but food had to be put on her plate. During the greater part of the time, however, she was confined to her bed and lost control of the functions of her bowels and kidneys. She had to be kept in diapers and her condition necessitated washing of bedclothes and garments two or three times a week.

The claimant, Florence Baker, performed all services with respect to the care of Mary Catherine Brown with some assistance from her son Harland. The claimant's evidence tended to prove that she was in attendance on her charge or subject to call 24 hours a day. It is not disputed that the claimant cared for Mary Catherine Brown in a commendable fashion. She kept the patient and her bed clean, washed and ironed the soiled clothing, prepared and served meals.

Mrs. Baker's claim against the estate consists of these items:

                To 156 weeks of washing and
                  ironing for the deceased, at
                  $5.00 per week                    $780.00
                To nursing deceased
                   8 months (240 days) at $20.00
                   per day                         4,800.00
                  28 months (840 days) at $25.00
                    per day                       21,000.00
                To board furnished deceased
                  For 1,040 days, at $1.50
                   per day                         1,620.00
                To room furnished deceased
                  For 156 weeks, at $10.00 per
                  week                             1,560.00
                

Defendant pleaded payment and its evidence tended to prove that claimant, Florence Baker, had entered into an express agreement with Mary Catherine Brown to furnish her a home and to take care of her for the sum of $100 a month and that current payments were made. Claimant denied the express agreement or that the money she received was in payment of her services. She based her claim on the reasonable value of her services. These issues were submitted to the jury.

Plaintiff's motion for new trial, not having been submitted to the trial court within 90 days after it was filed, was deemed overruled by operation of Section 510.360 RSMo 1949, V.A.M.S. on the 90th day after its filing and this appeal was timely taken. The plaintiff contends in this situation that 'it is the duty of this court to pass upon the weight of the evidence, and to pass upon the question of the adequacy of the verdict' because the trial court did not have 'the opportunity' to do so. Appellant cites no authority for her contention and the question appears not to have been previously determined by this court.

Section 510.360 provides: 'If the motion for new trial is not passed on within ninety days after the motion is filed, it is deemed denied for all purposes.' This section of the Civil Code has been supplemented by Supreme Court Rule 3.24, 42 V.A.M.S. dealing primarily with when a judgment becomes final for the purpose of ascertaining the time within which an appeal must be taken. The purpose of fixing a limited period for acting upon motions for new trial was to speed up litigation by eliminating unreasonable delay in the trial court after judgment. Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148, 149.

The question presented by appellant's contention is whether a different method or scope of appellate review pertains where a motion for new trial is deemed denied by operation of the statute than results where the motion is submitted to the trial court and overruled in the conventional manner. In determining the meaning and application of the provisions of the statute to the question presented, the court should ascertain the legislative intent from the words used if that is possible, and in so doing give to such words their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo., 277 S.W.2d 544, 545.

The statute says that the motion for new trial is denied 'for all purposes.' The word 'all' is sometimes said to be the most comprehensive in the English language; it denotes the 'whole number of,' 'each' and 'every.' State v. Hallenberg-Wagner Motor Co., 341 Mo. 771, 108 S.W.2d 398, 401. The use of these all-inclusive terms indicates an intent to accomplish by operation of law each and every purpose achieved by a formal order of the trial court, timely made, overruling a motion for new trial. The act was not intended to change the method or scope of appellate review.

'The purpose of a motion for new trial is to call the trial court's attention to the alleged erroneous rulings upon which the movant relies, and thus give the court an opportunity to correct its own errors, if any.' Banner Iron Works v. Ray R. Rosemond Co., Mo., 107 S.W.2d 1068, 1070. The statute does not deny the trial court the opportunity to pass upon the motion for new trial; it only limits the time in which it may be done. In fact, Sec. 510.370 expressly provides that the court, within 30 days after judgment, may of its own initiative order a new trial and, of course, the trial court may, within the 90-day period, set a hearing on the motion and pass on the motion personally. When a motion for new trial is denied by operation of the statute it must be presumed that the trial court and counsel knew and intended the consequences of their failure to act.

We must consider the questions raised on this appeal as if the motion for new trial had been duly submitted and a formal order had been entered by the trial court overruling the motion.

Plaintiff's principal complaint, in effect, is that the verdict is against the weight of the evidence as to damages since an assignment in a motion for new trial that the verdict is inadequate goes to the weight of the evidence. Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 10; O'Shea v. Pattison-McGrath Dental Supplies, 352 Mo. 855, 180 S.W.2d 19, 23; King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, 464.

In reviewing the ruling in the trial court denying plaintiff's motion for new trial on the ground of inadequacy of the verdict, the appellate court will not ordinarily undertake to weigh the evidence on the issue of plaintiff's damages but will examine the record to determine whether there is substantial evidence to support the amount of damages awarded by the verdict. Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 431; Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S.W.2d 610, 613[8, 9].

Upon appeal from the overruling of plaintiff's motion for new trial on the ground that the verdict of the jury was wholly inadequate, the appellate court will consider the evidence and all inferences therefrom most favorably to the verdict which the trial court let stand. Combs v. Combs, Mo., 284 S.W.2d 423, 426; Hoffman v. St. Louis Public Service Co., Mo., 255 S.W.2d 736, 744; Henderson v. Dolas, Mo., 217 S.W.2d 554, 557.

Plaintiff, on the issue of damages, testified that the rental value of the room occupied by Mary Catherine Brown was $10...

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