Baker v. Lyell

• Decision Date: 13 June 1922
• Docket Number: No. 17027.,17027.
• Citation: Baker v. Lyell, 242 S.W. 703, 210 Mo. App. 230 (Mo. App. 1922)
• Parties: BAKER v. LYELL.
• Court: Missouri Court of Appeals

242 S.W. 703

210 Mo. App. 230

BAKER v.LYELL.

No. 17027.

St. Louis Court of Appeals. Missouri.

June 13, 1922.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

Claim by Sallie A. Baker against John R. Lyell, administrator of the estate of Sarah E. Cochran, deceased.From judgment for claimant, the administrator appeals.Reversed and remanded, with directions.

James P. Boyd, of Paris, and Harry J. Libby, of Shelbina, for appellant.

John D. Dale, of Shelbyville, for respondent.

ALLEN, P. J.

This proceeding was begun in the probate court of Shelby county, on September 13, 1919, by the filing by plaintiff, Sallie A. Baker, of a demand against the estate of Sarah E. Cochran, deceased, as follows:

To labor and services from July, 1914, to
                  September, 1918, 51 months at $20.00 per
                  month .................................. $1,020 00
                To nursing during illness, 77 days........    165 00
                                                           _________
                     Total ............................... $1,185 00
                

The trial of the cause in the probate court resulted in a judgment for plaintiff in the sum of $700.Upon defendant's appeal to the circuit court and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff for the full amount of the demand, to wit, $1,185, and the defendant estate has appealed to this court.Mrs. Sarah E. Cochran died intestate in Shelby county on May 6, 1919, being about 70 years of age.The plaintiff, Sallie A. Baker, is a niece of Mrs. Cochran; plaintiff's mother, Nannie Baker, now deceased, having been a sister of Mrs. Cochran.The evidence shows that approximately 40 years prior to the trial of the cause below there was a separation between plaintiff's parents, James Baker and Nannie Baker, at which time plaintiff was a baby but a few weeks old.Upon separating from her husband plaintiff's mother went to the home of her sister, Mrs. Cochran, taking plaintiff with her.Thereafter the three lived together in the home of Mrs. Cochran, as members of one household, until plaintiff was about 18 years of age, when she married one Smith.Plaintiff and her husband lived together for but a period of about seven months, when she separated from her husband and returned to Mrs. Cochran's home.The time of plaintiff's return to Mrs. Cochran's home, after separating from her husband, is not definitely fixed by the evidence, but it appears to have been about the year 1896.From that time plaintiff and her mother continued to live at Mrs. Cochran's home, the three women living as one family, until some time in 1913, when plaintiff, on the advice of her physician, went to Montana, with her mother, on account of her health, remaining there until about July 4, 1914.It appears that the tilled land upon Mrs. Cochran's farm was rented to tenants, that Mrs. Cochran owned some live stock, and that prior to plaintiff's first trip to Montana she and her mother had some stock upon the place.Neither of the three women had good health.Mrs. Cochran had bronchial asthma for many years.Plaintiff's mother had a tubercular condition, diagnosed by her physician as tabes mesenterica.And plaintiff became afflicted with tuberculosis.

Letters in evidence from Mrs. Cochran to plaintiff, to which we shall later refer, indicate that plaintiff returned from Montana at the urgent request of Mrs. Cochran, who was then advanced in years and in declining health.Plaintiff remained with her aunt until September, 1918, when, it seems, she was compelled to return to Montana on account of the precarious condition of her own health.Testimony of witnesses for plaintiff tends to show that during the period here involved, viz. from July, 1914, to September, 1918, plaintiff rendered services in Mrs. Cochran's home and upon her farm, consisting of cooking, washing, sewing, putting up fruit, and other housework, feeding and watering stock, milking, marketing produce, nursing Mrs. Cochran, and dressing a wart on the latter's hand, said to have been of a cancerous nature.

Prior to the trial below plaintiff's mother had died.Plaintiff was, of course, not a competent witness in her own behalf.Consequently plaintiff's case rests upon the testimony of witnesses who saw plaintiff performing services of the character mentioned, from time to time, during the period involved, testimony as to certain statements or declarations made by Mrs. Cochran and the letters in evidence, written by Mrs. Cochran to plaintiff while the latter was in Montana.In one of these letters, dated at Shelbyville, Mo., March 30, 1914, Mrs. Cochran wrote to plaintiff:

"Sallie I will write again I want you to write and tell me when you are coming and what you have to say about me and my home and what I have wrote to you & your mother or have you gone to stay and not giving any ideah to me about what I have offered I would like to know right away I do not know what I will do I have tried to get different ones failed so far to stay with me cannot sleep nor rest nor eat only a little I am in great trouble did you know yesterday was my birthday 68 years old Please write and tell me what you and your mother are going to do I do not know what I will do if you do not I cannot sleep all alone.It seems my stomach and neck and head will kill me taking 3 kinds of medicine all the time I do not know what I am to do if you do not give me any hope I do not know how I am to stand it.* * * Please come while I am on earth if will not be long Oh do come I think if you knew my condition you would not hesitate I am not as well every letter I write you can depend I am telling the truth no scare it is true facts about myself Please do come while I live do not weight till I am not here to see Oh if I could make you believe ask your Papa if you do not believe me do not weight till two late to all O do come Your Aunt Sallie

"Please do come as soon as you can Sallie I will pay you and your mothers way to come home do come now."

In another letter to plaintiff, Mrs. Cochran said:

"If I get down I do not want a trained nurse I want you and your mother to be with me until the last.I cannot live alone."

The record shows no other portion of the correspondence between the parties.However, as said, the evidence does show that plaintiff, with her mother, returned from Montana to Mrs. Cochran's home early in July, 1914, and remained there until September, 1918.

Dr. Carson, a physician who treated Mrs. Cochran and plaintiff and her mother as well, testified that he had a conversation with Mrs. Cochran on the day prior to her death, and that Mrs. Cochran said that she wanted to compensate plaintiff for her services; that she wanted to reward plaintiff for her kindness, and compensate her for her services during the number of years she had been there.The witness stated that Mrs. Cochran asked him if she was competent to make a will, and that he told her that she was not physically able to do so.On cross-examination the witness said that in reference to compensating plaintiff Mrs. Cochran referred to plaintiff's companionship and services.

Being recalled, the witness, referring to plaintiff's trip to Montana in 1913, said: "She was not able to do what was to be done there, and I advised her to change."When asked what he saw plaintiff doing around the house, he said: "Well, just the ordinary household duties around the house, the work, and I think she took care of the cows."He stated that plaintiff took care of Mrs. Cochran whenever the latter needed attention; that Mrs. Cochran was not confined to her bed all of the time.He was asked whether he had seen plaintiff giving any personal attention to Mrs. Cochran, and he said: "Yes, sir, at different times."When asked to tell what this was, he said: "Well the ordinary attention that a sick person would require as a companion or nurse."When questioned in regard to the reasonable value of the services which he saw plaintiff performing, "in taking care of the home and Mrs. Cochran and the work about the home,"he said: "I suppose $40 or $50 a month would be reasonable."

Testifying further, on cross-examination, this witness said that during the period from 1914 to 1918he was sometimes called to administer to plaintiff when he was not called to see Mrs. Cochran.His further testimony in this connection is as follows:

"Q.Who was taking care of her [plaintiff] ?A.Her mother and neighbors.Q.Her Aunt Sarah was not doing anything for her?A.She was there; It suppose she did; she didn't seem to do the most of the work: she was there and helping.Q.Mrs. Cochran was helping to nurse Mrs. Baker, the plaintiff in this case?A.Yes, sir.Q.How many times were you called to see Sallie Baker when you were not called to see Mrs. Cochran?A.I don't know.Q.But each time you were called to see Mrs. Baker, the plaintiff in the case, when you were not called to see Mrs. Cochran, Mrs. Cochran was helping take care of her?A.Yes, sir.Q.Mrs. Cochran was nursing Mrs. Baker at times, and Mrs. Baker was nursing Mrs. Cochran at times?A.Yes, sir.Q.They took it just as a family would?A.Yes, sir."

G. W. Collier, a neighbor, testified that he had a conversation with Mrs. Cochran before plaintiff returned from Montana; that Mrs. Cochran "said she would like awful well for them [plaintiff and her mother] to come back; she was lonesome there by herself, and it didn't seem like any of the rest of them cared anything for her"; that "she thought Sallie ought to have everything she had, and she believed that was the way she would fix it."

Mrs. Emma Fugate testified that she came to live with Mrs. Cochran in November, 1918, under a contract to take care of her.The witness had not known Mrs. Cochran prior to that time.She stayed with Mrs. Cochran until the latter's death on May 8, 1919.She testified that Mrs. Cochran "often would cry and say she never had given Sallie (plaintiff) anything for staying there, and...