Benge's Adm'r v. Fouts

• Decision Date: 16 March 1917
• Citation: 192 S.W. 703,174 Ky. 654
• Parties: BENGE'S ADM'R v. FOUTS.
• Court: Kentucky Court of Appeals

192 S.W. 703

174 Ky. 654

BENGE'S ADM'R v. FOUTS.

Court of Appeals of Kentucky.

March 16, 1917

Appeal from Circuit Court, Clay County.

Action by Kitty Fouts against George A. Young, administrator of Elmira J. Benge. Judgment for plaintiff and defendant appeals. Affirmed.

See also, 163 Ky. 796, 174 S.W. 510.

William R. Ramsey, George A. Young, and George G. Brock, all of London, for appellant.

H. C Faulkner, of Hazard, H. C. Faulkner, Jr., of Hyden, D. W White and J. W. Stivers, both of Manchester, and W. E Faulkner and W. A. Stanfill, both of Hazard, for appellee.

HURT J.

This appeal is from a judgment in the Clay circuit court for the sum of $5,500, in favor of the appellee, Kitty Fouts, against the appellant, George A. Young, administrator of the estate of Elmira J. Benge, more commonly called in the record Jane Benge. A little history of the facts out of which the controversy grew, as well as the relations between the actors, will be necessary to an understanding of the questions at issue. The intestate, Jane Benge, seems to have been a native of the state of Iowa, or probably she was born in Clay county, Ky. after which, in her infancy, her parents removed to the state of Iowa, where she was reared. At the age of 31 years she was sorely afflicted with asthma, and upon advice of her physician, she left Iowa and came to Clay county, where a great many of her distant relatives resided, and there took up her abode. The change of climate relieved her of the asthma, and she engaged in teaching school, which employment she continued until 1874, when she associated with herself a young woman, whose name was Ann Benge. She had several hundred dollars in money, which she had accumulated from teaching school, when she went to Iowa, and returned with $2,000 in money, which she had received from the sale of lands, which had been given to her by her father. With this money she engaged in merchandising, with the assistance of Ann Benge, who was then a young woman 18 years of age. Her business venture prospered, and in a short time she bought a farm in the same community and went to reside upon it. After a time she erected a large three-story storehouse and continued the business of a merchant, and from year to wear she acquired more lands, and engaged in farming, buying, and selling stock, grain, and other of the commodities of the country. During these years Ann Benge and intestate resided together, and Ann did all the cooking, washing, and housekeeping for the two, made the fires, fed the stock during the winter, and in the summer she worked in the fields and supervised the work of other hired hands, and did every kind of farm work, except to plow, and upon occasions she assisted in the store. This continued until 1882, when Lizzie Parker came to live with the intestate and Ann Benge. She was then a girl only 8 years of age, but she continued to live with them until the year 1894, and while there engaged in every kind of work which she was able to perform, and as soon as she was old enough and large enough to do so, she, also, engaged in work upon the farm and assisting in handling and feeding the stock, cultivating and harvesting the crops, and worked in the fields generally.

In March, 1885, the appellee, Kitty Fouts, who was then a young woman 18 years of age, and whose name was Kitty Cornett, came to attend a school, and while at same resided at the house of intestate. The intestate at once set about procuring her to live with her also. The appellee's parents, however, would not consent to her remaining with the intestate all of the time, but the appellee and intestate arranged that when she became 21 years of age that she would return and live with her. She, however, lived with intestate about three-fourths of the time for the following 3 years, and on the day she became 21 years of age the intestate came for her with a buggy, and she lived thereafter with the intestate for nearly 21 years. From 1885 to 1893, Ann Benge, Lizzie Parker, and the appellee all lived in the house of the intestate. The appellee did the work of cooking and washing and keeping the house and assisted in the store and also the post office, of which the intestate was the keeper, and kept the books of the mercantile business, while the other two girls worked upon the farm and handled the stock, but in 1893 Ann Benge married a man, whose name was Creech, and hereafter we will call her Ann Creech. In 1894, Lizzie Parker, whose name theretofore was Lizzie Philpot, married Dr. Parker. Each of these girls went to live with their husbands, who lived in the community. The appellee continued, however, to live with the intestate, and her duties, on account of the other two having gone, became much more arduous. She did the cooking, made the fires, kept the house, fed the stock in the winter, oftentimes worked upon the farm, especially at harvesting times, worked as a clerk in the store and post office, and thus continued until the year 1896.

In 1896 intestate made a visit to Iowa and returned from there very much afflicted with asthma, from which disease she never recovered, except temporarily, during her lifetime. She was about one-half to three-fourths of her time thereafter entirely unable to do anything, or to assist herself when suffering from attacks of the asthma, and among other duties which the appellee performed was that of waiting upon and nursing the intestate. She was oftentimes engaged in the nursing both day and night, and she thus continued until the year 1906, when she married one Fouts, but she and her husband resided with the intestate until December, 1907, when she went to reside at the home of her husband in the community. Ann Creech and Lizzie Parker, during these years, oftentimes came, at the request of the intestate, and assisted in waiting upon her, and after the appellee had moved to the home of her husband she continued from time to time to come to the house of the intestate and assist and nurse her, but during the years 1910 and 1911, Ann Creech took the intestate to her house, where she remained during the greater part of those years, and she was nursed and waited upon by Ann Creech. The intestate died on the 11th day of December, 1911, leaving an estate of between $25,000 and $30,000 in value.

This suit was instituted by the appellee against the administrator of the intestate to recover from the estate the value of her services for the 23 years which she had lived with and served the intestate. By her petition and amended petition she alleged the rendition of the services and their value, and claimed that the services were rendered and received by the intestate under a contract between them to the effect that before the intestate died that she would make a will, in which she would devise to the appellee, Ann Creech, and Lizzie Parker a sufficiency of her property to pay them liberally for all the services that they had rendered for her. According to the allegations of the petition and amended petition, the same character of contract existed between Ann Creech and the intestate from 1874 until 1882, at the time Lizzie Parker came to live with the intestate, when the same contract was entered into between them, and that when the appellee came to live with the intestate the same contract and arrangement was entered into between them, and under the terms of this agreement the intestate was to make a will and devise to the three girls, in consideration of their services for her, all of the property which she should die the owner of, except the amount which she had received from her father's estate, which she desired to go to her brothers and sisters. She died, however, without making any will. About the same time that this action was instituted, Ann Creech and Lizzie Parker instituted similar actions to recover the value of their services. This action and that of Ann Creech were tried together, and it resulted in a verdict in favor of each of them for the sum of $7,500, but upon appeal to this court by the administrator the judgments were reversed, because it was held that, each of them being competent witnesses to prove the contract between intestate and the other and the value of the services of the other, a trial of the two cases together resulted substantially in permitting each of them to testify in their own behalf, and took of the appellant an unfair advantage. Another ground of reversal was the error of the court in the instruction to the jury, and another was that the judgments were excessive. Upon return of the actions to the court below, the cases were tried separately, and resulted in a judgment in this action in favor of the appellee for the sum first stated. The appellant's motion and grounds for a new trial being overruled, he has again appealed to this court. A reversal of the judgment is now urged for the following reasons: (1) The evidence was insufficient to support the contract relied upon in the petition or any contract of a similar nature. (2) The court erred in refusing to permit the appellant to file an amended answer, alleged to conform his defense to the proof. (3) The court erred in instructing the jury and in refusing instructions to the jury. (4) The court erred in the admission and rejection of testimony. (5) The verdict of the jury was excessive.

1. (a) With reference to the insistence of appellant that the evidence is insufficient to prove the making of the contract relied upon in the petition, it is urged that Ann Creech and Lizzie Parker are not competent to testify as witnesses for appellee. They detail conversations between intestate and appellee and themselves which occurred at and after the time appellee began to serve the intestate, and the argument is that neither of them are competent...