Blankenship v. Rowntree

• Decision Date: 29 October 1956
• Docket Number: No. 5328.,5328.
• Citation: 238 F.2d 500
• Parties: Daisy D. BLANKENSHIP, Appellant, v. Maxwell ROWNTREE, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

238 F.2d 500 (1956)

Daisy D. BLANKENSHIP, Appellant, v. Maxwell ROWNTREE, Appellee.

No. 5328.

United States Court of Appeals Tenth Circuit.

October 29, 1956.

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J. B. Dudley and John B. Dudley, Jr., Oklahoma City, Okl. (Dudley, Duvall & Dudley, Oklahoma City, Okl., on the brief), for appellant.

Gordon F. Rainey, Oklahoma City, Okl. (Rainey, Flynn, Green & Anderson, Oklahoma City, Okl., on the brief), for appellee.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

This was an action instituted by Maxwell Rowntree against Daisy D. Blankenship, individually and as executrix of the estate of G. T. Blankenship, deceased, to recover judgment for services rendered and expenses incurred pursuant to an alleged oral contract of employment. The action was dismissed as to the defendant in her capacity as executrix. The defendant in her individual capacity denied the making of the alleged contract and denied that she was indebted to plaintiff in any sum. A verdict was returned for plaintiff; judgment was entered upon the verdict; and on appeal, the judgment was reversed and the cause remanded, 10 Cir., 219 F.2d 597. On the second trial, a verdict was returned for plaintiff; judgment was entered for the amount of the verdict, less an offset in the amount of the costs incurred on prior appeal; and the defendant appealed. Continued reference will be made to the parties as plaintiff and defendant, respectively.

The judgment is challenged upon the ground that there was no substantial evidence to show that the parties entered into the contract of employment relied upon by plaintiff. The evidence presented sharp conflicts. Plaintiff testified without condition or qualification that the parties entered into an oral contract of employment; that it was agreed in such contract that his compensation should be $50 per day; that it was further agreed that he should be paid his expenses, estimated at $20 per day; and that he worked for the defendant from January 14 to September 18, 1952. Defendant testified categorically that no such agreement was ever entered into. It would not serve any useful purpose to detail the other evidence in the case. It is enough to say that some of it tended to corroborate the testimony of plaintiff and some to corroborate that of defendant. But in the trial to a jury of the conventional action at law, it is the province of the jury to observe the witnesses while testifying, to appraise their credibility, to weigh their testimony, to draw reasonable inferences from the established facts, to resolve conflicts in the evidence, and to determine the ultimate question or questions of fact upon which the outcome of the case depends. And on appeal, the scope of review respecting the facts is limited to determining whether there was substantial evidence to support the verdict. Guided by that general rule, we are unable to share the view that there was any lack of substantial evidence to show that the parties entered into the alleged contract of employment.

The further contention advanced for reversal of the judgment is that there was no substantial evidence to show the amount of the expenses which plaintiff claimed to have incurred. Recovery of expenses cannot be had if there is substantial doubt or uncertainty as to whether plaintiff incurred any expenses. But recovery of expenses may be had where the evidence makes it certain that plaintiff incurred recoverable expenses in some amount even though there may be some uncertainty in respect to the exact amount thereof. It is not essential to the recovery of expenses that the proof show the exact amount thereof with absolute certainty. It satisfies the requirements of law in respect to amount if the evidence is sufficient to enable the court or jury to arrive at a fair and reasonable approximation thereof. It is conceded in the brief of the defendant that the verdict of the jury was for 246 days at $70 per day. Plaintiff did not keep any books or records of his expenses and he did not submit an itemized statement of them. As already indicated, plaintiff testified in positive terms that it was mutually agreed between the parties that his compensation for services should be $50 per day and that he should be reimbursed for his expenses, estimated at $20 per day. And he further testified that he worked from January 14 to September 18, 1952; that he lived at a hotel in Oklahoma City; that he made numerous trips to points in Texas, New Mexico, and Oklahoma in connection with the business of the defendant; that he paid all of his expenses; that during the time in question he was not doing anything other than work for the defendant; and that he was out of pocket about $6,000 in cash. We think the evidence together with the inferences fairly to be drawn from it was sufficient to enable the jury to reach a reasonably fair approximation of the amount of expenses incurred by plaintiff.

The substance of the further contention is that the court erred in refusing to permit counsel for the defendant to argue to the jury that should a verdict be returned for the defendant, plaintiff could maintain an action in quantum meruit to recover the reasonable value of the services which he rendered and the reasonable expenses incurred in connection with the rendering of such services. Upon objection being interposed to such argument, the court expressed the view that if plaintiff failed to recover in this action, he could not maintain an action in quantum meruit. Counsel for the defendant asked to withdraw his statement made to the jury and requested the court to instruct the jury not to consider it. And the court did instruct the jury not to consider the statement of counsel or that of the court. There is no need to explore the question whether the observation of the...