Barr v. Hays
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 1095,172 Mo.App. 591 |
| Parties | LUCY BARR, Respondent, v. CHARLES T. HAYS, Administrator, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Marion Circuit Court.--Hon. William T. Ragland, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Reuben F. Roy and Hays & Heather for appellant.
(1) The court erred in sustaining the plaintiff's motion for a new trial. It was sustained on the fourth ground stated in the motion. The court took the view that there was no evidence from which the jury could find that the plaintiff had been supported by the deceased during the time of the rendition of the services. (2) There was abundant evidence from which the jury had the right to infer that Priest "supported" the plaintiff. She lived in his house doing domestic service and had no independent source of support. That continued for fifteen years after he ceased to pay her anything--if he ever did pay her for any of the time before, and there is no evidence that he did. It would be the ordinary course of affairs for one in that position to get her food, shelter and clothing from him, and the law will so presume, especially when no account was kept. Watkins v Donnelly, 88 Mo. 322; Ivy v. Yancey, 129 Mo 501; Fitzgerald v. Baker, 85 Mo. 21; Richards v Coal Mining Co., 221 Mo. 158; McCallister v. Ross, 155 Mo. 87; Smith v. Myers, 19 Mo. 433; Brand v. Ray, 156 Mo.App. 629. The instruction given at the request of the plaintiff contains the same view of the law as that contained in the instructions for the defendant. Such being the case, the error, if any, was invited by the plaintiff and is not reversible. She cannot complain of it. Berkson v. Railroad, 144 Mo. 211; Dunlop v. Griffith, 146 Mo. 283; Frankenthal v. Guardian Assur. Co., 76 Mo.App. 15; Gayle v. Mo. Car & F. Co., 177 Mo. 455; Cady v. Coates, 101 Mo.App. 147.
John G. Cable and Charles E. Rendlen for respondent.
(1) (a) Plaintiff having rendered the services sued for, the law presumes that she was to be paid therefor. Christianson v. McDermott Estate, 123 Mo.App. 453; Lillard v. Wilson, 178 Mo. 152, 153. (b) This presumption obtaining in the case at bar, it can only be met by evidence "that the services sued for were rendered by plaintiff without any intention of receiving compensation therefor other than her support, and that said services were accepted by John A. Priest (decedent) with that understanding." Appellant's instruction No. 1. If the relation of the parties is such that a presumption to pay arises from the mere acceptance of beneficial work, the defendant has the burden of overcoming the presumption by proof that the work was done gratuitously or for support and maintenance merely. Fitzpatrick v. Dooley, 112 Mo.App. 172. (2) The verdict is manifestly against the evidence and the greater weight of the evidence. This court will not disturb the order granting the new trial, when the verdict of the jury is against the weight of the evidence. Hoepper v. Hotel Co., 142 Mo. 378; Ittner v. Hughes, 133 Mo. 679; Bunyan v. Railroad, 127 Mo. 12.
--This is an action to enforce a claim against the estate of one John A. Priest, deceased. The plaintiff filed her demand in the probate court of Marion county for allowance against said estate of her claim for twenty-three years' work, labor and services alleged to have been rendered the deceased during the period from January 1, 1886, to January 1, 1909, at the rate of $ 2.50 per week, amounting for the entire period to $ 2990. Payment is credited upon the account up to January 1, 1894, in the amount of $ 1040, leaving an alleged balance due plaintiff of $ 1950.
Trial was had upon her claim in said probate court, and the balance claimed by plaintiff was allowed against the estate. Thereafter the administrator of the estate, Charles T. Hays, duly perfected an appeal to the Hannibal Court of Common Pleas; and thereafter the venue in the cause was, by consent of the parties, duly changed from the Hannibal Court of Common Pleas to the circuit court of Marion county, where the cause was tried before the court and a jury, resulting in a verdict for the defendant. Thereupon plaintiff filed her motion for a new trial herein, assigning various grounds for the motion; and the same coming on to be heard, said motion for a new trial was by the court sustained and a new trial granted, upon the ground that an instruction given on behalf of the defendant was not supported by any substantial evidence in the case. From this order granting a new trial, defendant administrator of said estate has duly perfected his appeal to this court.
The services alleged to have been rendered by plaintiff to deceased during his lifetime were those of a domestic servant, and alleged to have consisted of cooking, housework, washing and ironing, feeding stock, milking, etc. Plaintiff is a colored woman and for many years lived at the home of the deceased. The claim is for services alleged to have been rendered during the last fifteen years prior to the death of deceased. The evidence on behalf of plaintiff tended to show that she performed services of the character above mentioned for deceased during the fifteen years in question. There was some evidence tending to show that the deceased expected to pay her for her services. A witness for plaintiff, one Chinn, testified that deceased told him at one time that he couldn't pay the plaintiff just then, for the reason that he was too much in debt, but that he wanted plaintiff to stay at his home; that he couldn't help her very much then, that he had a mortgage on one of his farms, and that he was not making enough on both of the farms owned by him to pay the interest on the debt, saying however, "But when I get out, when times are better and I can get through with that place over there, I will pay Lucy." This conversation was said to have been sometime in 1896 or 1897.
The evidence showed that defendant at the time last mentioned above owned two farms. One of them, upon which he lived, contained over two hundred acres and was free of incumbrance. The other farm, known as the "Sanders Place," contained about two hundred and forty acres, and was encumbered by a mortgage for about $ 2200. At the time of the alleged conversation with the witness Chinn, the deceased owed witness $ 250. The mortgage on the "Sanders Place" and this $ 250 was all the indebtedness of deceased at that time, so far as the evidence disclosed. This witness also testified that upon one occasion, shortly prior to the death of deceased, he went out to see deceased, and after talking with him about selling a horse, he and deceased started to go into the house; that Lucy, the plaintiff here, was on the porch and met them as they were going into the house and said: That Mr. Priest said,
On behalf of defendant it was shown that the plaintiff was a large woman, afflicted with rheumatism, could not get around very well, and was not able to do much work; that she was not a cook, and that she did not do the feeding and milking at deceased's place. It was also shown that the washing and ironing for deceased and his family were done, to a considerable extent at least, by others. Plaintiff was an old servant in the family, and, during the period for which she claims, she received her food and lodging from deceased; and it did not appear that she had any income, or that there was any other source from which she might obtain her clothing and other necessities. She, of course, did not testify. The defense was that plaintiff was kept at the home of deceased and supported by him in return for which she rendered some service, but that there was no intention of paying her regular wages therefor; that she was not able to perform services of any material value, but that she simply helped about the home in return for the support and maintenance provided by deceased. No contract of employment was shown, nor was it shown that deceased had ever paid plaintiff anything for her services beyond providing for her in his home.
There was nothing in the evidence from which it might be inferred that plaintiff was not to be paid wages for her services, beyond the facts and circumstances in evidence respecting the physical condition of plaintiff, the nature of the services performed, what she received in the way of support and maintenance, and the period of time over which the course of dealing in question extended without the assertion of any claim by plaintiff beyond that appearing by the testimony of the witness Chinn.
At the close of the evidence the following instruction was given on behalf of plaintiff:
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