Bowman v. Shelton

CourtMissouri Court of Appeals
Writing for the CourtReynolds
Citation158 S.W. 404
Decision Date24 June 1913
PartiesBOWMAN v. SHELTON.
158 S.W. 404
BOWMAN
v.
SHELTON.
St. Louis Court of Appeals. Missouri.
June 24, 1913.

1. APPEAL AND ERROR (§ 1005) — REVIEW — CONFLICTING EVIDENCE.

A verdict on conflicting evidence, approved by the trial court, cannot be disturbed on appeal; the trial court alone, in an action at law, being authorized to pass on the weight of the testimony.

2. ACTION (§ 38) — PLEADING — SINGLE CAUSE OF ACTION.

A claim in gross for sundry services rendered and board furnished at divers times during a period of years, constituting a running account, is but a single cause of action that may be pleaded in one count.

3. PLEADING (§ 426) — RULINGS ON MOTIONS — WAIVER.

Defendant loses the benefit of his motion to compel plaintiff to elect between causes of action by pleading over after the motion is overruled.

[158 S.W. 405]

4. EXECUTORS AND ADMINISTRATORS (§ 221) — CLAIM AGAINST ESTATE — FAMILY RELATION — PRESUMPTION.

While there is a presumption from the family relation that services and board rendered and furnished by plaintiff to deceased while they and plaintiff's husband, son of deceased, were living as one family, were rendered gratuitously, this may be overcome by substantial evidence that they were rendered and furnished on the expectation of both parties that they were to be paid for.

5. EXECUTORS AND ADMINISTRATORS (§ 206) — CLAIM AGAINST ESTATE — MANNER OF PAYMENT.

Where services and board were rendered and furnished by plaintiff to deceased while they and plaintiff's husband, son of deceased, were living as one family, on the expectation of both parties that they were to be paid for, though deceased expected to pay plaintiff by remembering her in her will, she having failed to do so, recovery may be had against her estate.

6. LIMITATION OF ACTIONS (§ 53) — RUNNING ACCOUNT.

Where there is a running account, though all the items are on one side, none of the items are barred by the statute, unless all are.

7. EXECUTORS AND ADMINISTRATORS (§ 221) — CLAIMS AGAINST ESTATE — EVIDENCE.

In the absence of any statute to the contrary, a claim for services rendered deceased may be proved by parol.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by Nellie Bowman against N. E. Shelton, public administrator, in charge of the estate of Eliza Noland, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Lane & Alexander, of Cape Girardeau, for appellant. T. D. Hines and M. A. Dempsey, of Cape Girardeau, for respondent.

REYNOLDS, P. J.


Mrs. Eliza Noland died the 30th of January, 1910, on a farm at Bainbridge, Cape Girardeau County, on which farm she had lived and reared her family. She was about eighty-four or eighty-five years of age at the time of her death and had been a widow for a number of years. The farm on which she lived and died was her own property. By her last will she devised the farm to an only daughter, Mrs. Ellen Bowman, who survived her. Her only other heir at law was a son, Henry Bowman, husband of the plaintiff here, to whom she left $5. Henry Bowman had married the plaintiff some twenty-five years prior to the death of his mother. Prior to the marriage he had lived on the farm mentioned with his mother and after his marriage he and his wife continued to make their home there, the only other member of the family being the daughter of Mrs. Bowman by a former marriage. Along in 1900 or 1903, the St. Louis & San Francisco Railway Company was constructed either through or near the farm, on which farm, in addition to a small dwelling, were a store house and wharf on the Mississippi River. Bainbridge appears to have been a station on the railroad and Henry Bowman, the husband of plaintiff, kept a small grocery there and managed the wharf. He was also post master at the village of Bainbridge. Along in 1902 or 1903, Mrs. Bowman commenced keeping boarders. Prior to 1902 Mrs. Noland, while living in the house with the Bowmans, had provided for herself, living in her own room. When Mrs. Bowman commenced keeping boarders, either in 1902 or 1903, her mother-in-law appears to have discontinued providing her own meals and while she still continued to occupy one room in the house, she took her meals with the family. As she advanced in years and became feeble, the plaintiff took care of her, nursing and attending on her, the necessity for attendance increasing with the years.

The question presented in this case arises over the right of appellant here to charge for board and these services.

The action was commenced October 24, 1910. The petition in the cause, in one count, avers that Oliver Bowman, who at the time of the institution of this action had charge of the estate of Mrs. Eliza Noland, as executor under her will, was indebted to plaintiff in the sum of $1,425 on account of board and washing furnished Mrs. Noland from March 8, 1902, to January 30, 1910, at $15 per month, and for services of plaintiff as a nurse in taking care of Mrs. Noland during her illness from December 23, 1907, to the 23d of February, 1908, at the rate of $2.50 a day, amounting to $155, and for services as a nurse in her last illness from November 15, 1909, to January 30, 1910, in the sum of $380, being at the rate of $5 a day, and for services rendered Mrs. Noland by plaintiff, "in watching after and taking care of her" from November 15, 1906, to November 15, 1909, at the rate of $5 a month, a total of $180, the total amount claimed being $2,140. The defendant appearing moved the court to require plaintiff to elect upon which cause of action stated in her petition plaintiff would proceed. This motion was overruled, defendant excepting and filing an answer, which, after a general denial, pleads the statute of limitations thus: "Answering further and as a defense to said petition defendant states that the amount alleged to be due plaintiff for board and washing prior to

158 S.W. 406

the 29th day of November, 1905, if any, or upon any cause of action therein stated accrued to plaintiff more than five years next before the filing of her petition," and it is averred that whatever cause of action is stated in the petition, that accrued prior to the 29th of November, 1905, is barred by the statute of limitations. The cause was tried before the court and a jury and at the conclusion of the testimony for plaintiff, defendant demurred to the evidence. This was overruled, defendant excepting. Whereupon defendant offered his evidence. At the conclusion of all the testimony in the case defendant again renewing his demurrer to the evidence, the demurrer was overruled, defendant excepting.

At the instance of plaintiff the court gave four instructions, all of which were excepted to by defendant. At the instance of the defendant the court gave six instructions and refused two. One of the instructions asked by defendant and refused was that if the jury find the issues for plaintiff, in arriving at the amount of their finding they should not take into consideration any services rendered or meals furnished prior to the 29th of November, 1905; in the other refused instruction the court was asked to tell the jury that they should not take into consideration the charge for any services rendered or meals furnished deceased prior to September, 1907.

The jury returned a general verdict in favor of...

To continue reading

Request your trial
18 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...Lbr. Co., 260 Mo. 212, 169 S.W. 145; Hyde v. United States, 225 U.S. 347; Ochs v. People, 124 Ill. 399, 16 N.E. 662; Bowman v. Shelton, 158 S.W. 404; Baltimore S.S. Co. v. Phillips, 274 U.S. 316. (6) Knowledge of the city manager of the illegality of payments to appellant cannot be imputed ......
  • Signaigo v. Signaigo, No. 18,459.
    • United States
    • United States State Supreme Court of Missouri
    • May 17, 1918
    ...Co., 168 MO. App 342, 153 S. W. 1078; Advertising Co. v. Elders, 170 Mo. App. 490, 156 S. W. 737; Bowman v. Shelton, 175 Mo. App. 696,, 158 S. W. 404. If 205 S.W. 29 these averments constitute two defenses, they must now go to the merits of both. 2. It will be helpful to keep in mind the co......
  • Hofmann v. Sawyer, No. 21771.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1932
    ...justifying the inference of an actual agreement to pay for the services. Elstroth v. Karrenbrock, 285 S.W. l.c. 527; Bowman v. Shelton, 158 S.W. 404; Miller v. Smith, 275 S.W. l.c. 771; Broyles v. Byrne, 13 S.W. (2d) 560, l.c. 561. (6) In considering the question of the demurrer, the eviden......
  • Hays v. Miller's Estate, No. 1414.
    • United States
    • Court of Appeal of Missouri (US)
    • March 1, 1915
    ...was such as to make it a matter for the consideration of the jury." To the same effect is Bowman v. Shelton, 175 Mo. App. 696, 158 S. W. 404. It is not conclusive from the evidence that deceased was a member of the claimant's family so as to raise the presumption that his services in c......
  • Request a trial to view additional results
18 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...Lbr. Co., 260 Mo. 212, 169 S.W. 145; Hyde v. United States, 225 U.S. 347; Ochs v. People, 124 Ill. 399, 16 N.E. 662; Bowman v. Shelton, 158 S.W. 404; Baltimore S.S. Co. v. Phillips, 274 U.S. 316. (6) Knowledge of the city manager of the illegality of payments to appellant cannot be imputed ......
  • Signaigo v. Signaigo, No. 18,459.
    • United States
    • United States State Supreme Court of Missouri
    • May 17, 1918
    ...Co., 168 MO. App 342, 153 S. W. 1078; Advertising Co. v. Elders, 170 Mo. App. 490, 156 S. W. 737; Bowman v. Shelton, 175 Mo. App. 696,, 158 S. W. 404. If 205 S.W. 29 these averments constitute two defenses, they must now go to the merits of both. 2. It will be helpful to keep in mind the co......
  • Hofmann v. Sawyer, No. 21771.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1932
    ...justifying the inference of an actual agreement to pay for the services. Elstroth v. Karrenbrock, 285 S.W. l.c. 527; Bowman v. Shelton, 158 S.W. 404; Miller v. Smith, 275 S.W. l.c. 771; Broyles v. Byrne, 13 S.W. (2d) 560, l.c. 561. (6) In considering the question of the demurrer, the eviden......
  • Elstroth v. Karrenbrock, No. 19363.
    • United States
    • Missouri Court of Appeals
    • June 1, 1926
    ...W. 74; Cowell v. Roberts' Ex'r, 79 Mo. 218; Wood v. Lewis' Estate, 183 Mo. App. 553, 167 S. W. 666; Bowman v. Shelton, 175 Mo. App. 696, 158 S. W. 404; Hyde v. Honiter, 175 Mo. App. 583, 158 S. W. 83; Baker v. Lyell, 210 Mo. App. 230, 242 S. W. 703; Kingston v. Roberts, 175 Mo. App. 69, 157......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT