Brand v. Ray
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 623,156 Mo.App. 622 |
| Parties | EMERSON BRAND, Respondent, v. O. P. RAY, Administrator, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. John B. Butler, Judge.
Judgment reversed.
R. W. & W. W. Rucker for appellant.
(1) There is no evidence tending to establish an express contract, and no proof of facts and circumstances from which an implied contract can reasonably be inferred. The casual declarations alleged to have been made by deceased are wholly insufficient to justify the inference of a contract. The legal presumption are against plaintiff. The defendant's demurrer should have been sustained. Birch v. Birch, 112 Mo.App. 163; Lawrence v. Bailey, 84 Mo.App. 109; Fitzpatrick v. Dooley, 112 Mo.App. 170; Castle v. Edwards, 63 Mo.App. 567; Louder v. Hart, 52 Mo.App. 380; Woods v. Land, 30 Mo.App. 176; Rosenwald v. Middlebrook, 188 Mo. 101; Steele v Steele, 161 Mo. 575; Reed v. Morgan, 100 Mo.App. 723; Sloan v. Dale, 90 Mo.App. 90. (2) The court erred in overruling defendant's motion for a new trial. The undisputed testimony shows that plaintiff, his mother, his aunt and his uncle constituted one family and that they resided together as a family during all the years covered by this suit. This being true the law presumes that whatever services the plaintiff rendered the deceased were mere acts of gratuitous kindness, prompted by affection and not performed in the expectation of receiving pay for same. It devolves on plaintiff to overcome this presumption either by proof of an express contract or by proving such facts and circumstances as will justify a reasonable inference of an implied contract. There is no such proof in this record. The motion for a new trial should have been sustained. Birch v. Birch, 112 Mo.App. 163; Lawrence v. Bailey, 84 Mo.App. 109; Fitzpatrick v. Dooley, 112 Mo.App 170; Castle v. Edwards, 63 Mo.App. 567; Louder v. Hart, 52 Mo.App. 380; Woods v. Land, 30 Mo.App. 176; Rosenwald v. Middlebrook, 188 Mo. 101; Steele v. Steele, 161 Mo. 575-6; Reed v Morgan, 100 Mo.App. 723; Sloan v. Dale, 90 Mo.App. 90. (3) The court erred in giving instruction No. 1 requested by plaintiff. Said instruction not only does not properly declare the law, but it expressly misstates the law as applicable to this case, and is in conflict with proper instructions given for defendant. Giving proper instruction for defendant did not cure the error. Birch v. Birch, 112 Mo.App. 163; Castle v. Edwards, 63 Mo.App. 569; Louder v. Hart, 52 Mo.App. 381; Bluedorn v. Railroad, 108 Mo. 450; McKinnon v. Coal & Mining Co., 120 Mo.App. 164; McNichols v. Nelson, 45 Mo.App. 454; Wallack v. St. Louis Transit Co., 123 Mo.App. 167. (4) The court erred in refusing to give instruction number 7 requested by defendant. Said instruction correctly declared the law of the case and should have been given. Louder v. Hart, 52 Mo.App. 381; Woods v. Land, 30 Mo.App. 181; Castle v. Edwards, 63 Mo.App. 568; Lawrence v. Bailey, 84 Mo.App. 110; Tyler v. Hall, 106 Mo. 323.
O. F. Smith and J. A. Collet for respondent.
(1) Defendant's instruction in the nature of a demurrer was properly refused even if it be conceded that plaintiff and deceased were members of the same family during all the time covered by plaintiff's account, yet there was ample evidence to establish an implied contract on the part of deceased to pay plaintiff for his services. The intention to charge by one and to pay by the other need not be proven by direct or positive testimony, but may be shown by facts and circumstances from which such intention may be inferred. Birch v. Birch, 112 Mo.App. 157; Sloan v. Dale, 90 Mo.App. 87; Fry v. Fry, 119 Mo.App. 476; Cole v. Fitzgerald, 132 Mo.App. 17; Eisiminger v. Stanton, 129 Mo.App. 409; Stone v. Troll, 134 Mo.App. 308; Taylor v. Hudson, 145 Mo.App. 377; McMorrow v. Dowell, 116 Mo.App. 289; Rose v. Mays, 139 Mo.App. 246; Koch v. Hebel, 32 Mo.App. 103; Bosard v. Powell, 79 Mo.App. 184; Ramsey v. Hicks, 53 Mo.App. 190. (2) A demurrer to the evidence admits every fact proved, or which may be inferred from the testimony to be true and should never be sustained unless the evidence, when thus considered, fails to prove plaintiff's case. Noeninger v. Vogt, 88 Mo. 589; Healey v. Simpson, 113 Mo. 340; Baird v. Citizen's Railway Co., 146 Mo. 281; Thompson on Trials (1 Ed.) sec. 1663. (3) Respondent's second contention that "the undisputed testimony shows that plaintiff, his mother, his aunt and his uncle constituted one family and that they resided together as a family during all the years covered by this suit" is not tenable. First, because under the most favorable aspect of the evidence to respondent, it is a question for the jury to determine whether there was such family relations existing between the parties as to raise the presumption that respondent's services were gratuitous. Smith v. Myer, 19 Mo. 433; Fitzpatrick v. Dooley, 12 Mo.App. 165. Second, the evidence conclusively shows that for a period of eight or ten years respondent lived separate and apart from the family to which deceased belonged and was in no sense a part of that household, under which circumstances the law presumes an intention, on the one side to pay, and on the other to receive pay for the services rendered. Sprague v. Sea, 152 Mo. 327; Moore v. Ranick, 95 Mo.App. 207; Thomas v. Coal Co., 43 Mo.App. 653; Lowe v. Sinklear, 21 Mo. 308; Hay v. Walker, 65 Mo. 817. (4) Respondent's first instruction correctly declared the law of the case and was properly given. Eisiminger v. Stanton, 129 Mo.App. 410; Taylor v. Hudson, administrator, 145 Mo.App. 377. (5) While respondent insist instruction No. 1 was properly given by the trial court, yet said instruction is not before this court for consideration. There having been no objection made before the trial court to the giving of said instruction. Sheets v. Ins. Co., 226 Mo. 613. (6) Appellant's seventh instruction was properly refused for three reasons. First, because it doesn't correctly state the law. Fry v. Fry, 119 Mo.App. 478. Second, because it was comment on the evidence. Third, because it was an invasion of the rights of the jury to weigh and determine the facts. Woodward v. Railroad, 133 S.W. 667. (7) Even though it may be said that deceased's intention as expressed was to leave his property to respondent at his death and not an intention to pay respondent for his services, yet, nevertheless respondent may recover the value of his services in this action against the administrator. Koch v. Hebel, 32 Mo.App. 103; Hall v. Getman, 121 Mo.App. 630. The verdict was not excessive nor was it against the weight of the evidence nor the result of passion and prejudice. Two juries, one in the probate court and one in the circuit court found that deceased promised and agreed to compensate plaintiff for his services and thus the services were worth the amount recovered. This conclusion has the approval of the trial court, under which circumstances this court will not interfere with the verdict, unless clearly shown to be wrong. Majors v. Parkhurst, 124 Mo.App. 108; Woodward v. Cooney, 111 Mo.App. 152; Thurmond v. White Lime Ass'n, 125 Mo.App. 61; James v. Life Association, 148 Mo. 15.
Plaintiff presented a claim to the probate court of Chariton county against defendant as administrator of the estate of Irvin Brand, which reads as follows:
"For services rendered by the said Emerson Brand to the said Irvin Brand, in taking care of, waiting on, and attention to the said Irvin Brand during his lifetime, for a period of twenty-three years, nine months and seventeen days, dating from the 24th day of February, 1886, to the date of his death, Nov. 5, 1909,--the sum of Nine Thousand Four Hundred and Ninety-nine Dollars and 71-100 ($ 9499.71)."
On trial in the probate court an allowance of $ 5000 was made against the estate. The case was appealed by the defendant to the circuit court where, on trial, a verdict and judgment were rendered against the estate for $ 7300, whereupon defendant appealed to this court.
Prior to his death Irvin Brand had resided on a farm in Chariton county for forty years. He was a bachelor and he and two sisters lived together as a family until one of the sisters (Mrs. Jordan) died some five or six years before her brother Irvin. The surviving sister (Mrs. Cannon) continued until his death, and she is the mother of this plaintiff, Emerson Brand, who was born on the place in about the year 1873. He was thirty-six years old at the time of his uncle's death, and, with the exception of five or six years that he spent in school in St. Louis, he lived on the place with his mother and uncle and aunt, all as one family. He married a few years before his uncle's death, but lived in a small house close to the main house, on the same farm, and continued the family relation. Deceased was about eighty-three years old when he died, and he left an estate of about $ 11,000 in money.
The evidence in the case relates principally to the deceased's health and the service plaintiff rendered, as well as what is said on the subject of promises to pay for the service. Scarcely any of it is definite as to dates or length of time or character of service. It tended to show that up to about ten years before his death the old man was in ordinary good health. For some period before his death, say ten years, he was occasionally feeble, and at times in the last five years of his life was afflicted with kidney trouble, and at some times, in the last five years, his bowels were not within control. It further tended to show that his room was upstairs, but that he was down and about, except when sick, even up to shortly before his death. Plaintiff attended to the necessities of his room when h...
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