Bowman v. Shelton

Citation158 S.W. 404
PartiesBOWMAN v. SHELTON.
Decision Date24 June 1913
CourtCourt of Appeal of Missouri (US)

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 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 plaintiff, assessing her damages at the sum of $700. Filing a motion for new trial, as also one in arrest, and excepting to the action of the court in overruling these motions, the executor duly perfected his appeal to this court. Pending the appeal the executor resigned and N. E. Shelton, Public Administrator of Cape Girardeau County, took charge of the estate. Entering his appearance here and filing a motion to that effect, he has been duly substituted as appellant.

This presents a case of which we have recently had quite a number of like character, of a dispute arising on the death of a member of a family over the question as to whether the services rendered her while the parties were all of one family were gratuitously furnished in consideration of and as growing out of the family relation, or whether they were furnished under a contract, express or implied, or under such circumstances as created an obligation on the part of the estate of the deceased to pay for them. The determination of this class of cases is so entirely a matter for the jury and for the trial court that if no substantial error has been committed in the reception or rejection of testimony, or in the matter of the giving or refusal of instructions, and there is substantial evidence to support the verdict, the appellate courts cannot and will not interfere, the verdict having been approved by the trial court. That court alone is authorized in an action at law, as invariably held, to pass on the weight of the testimony.

It is very earnestly insisted by counsel for appellant that two or more causes of action are improperly joined in one count in the petition and as noted, a motion was filed to compel plaintiff to elect as to which cause of action he would rely upon. That motion was overruled, whereupon plaintiff answered and pleaded, after a general denial, the five-year statute of limitations. An examination of this petition does not sustain this charge that there are several causes of actions counted upon. As the facts are pleaded in the petition the account is a running account, made up of various items, accruing at different dates but constituting one cause of action, properly stated in the one count for board and services: a claim in gross for sundry services rendered and board furnished at divers times during a period...

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