Brunnert v. Boeckmann's Estate

• Decision Date: 21 January 1924
• Docket Number: No. 14552.,No. 14551.,14551.,14552.
• Citation: 258 S.W. 768
• Parties: BRUNNERT v. BOECKMANN'S ESTATE (two cases).
• Court: Missouri Court of Appeals

258 S.W. 768

BRUNNERT v. BOECKMANN'S ESTATE (two cases).

No. 14551.

No. 14552.

Kansas City Court of Appeals. Missouri.

January 21, 1924.

Rehearing Denied February 11, 1924.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

Separate actions by Gertrude Brunnert and John Brunnert against the estate of Ferdinand Boeckmann, deceased, consolidated for trial. Judgments for plaintiffs, and defendant appeals. Appeals consolidated. Reversed and remanded for new trials.

Vosholl & Monroe, of Linn, and Glendy B. Arnold, of St. Louis, for appellant.

Leslie B. Hutchison, of Vienna, and E. M. Zevely, of Linn, for respondents.

TRIMBLE, P. J.

The controversies herein arose out of two demands filed in the probate court by a husband and his wife, respectively, against the estate of Ferdinand Boeckmann, deceased. By agreement they were tried together as one case in the circuit court, and, upon being appealed, were briefed, argued, and submitted as if they constituted but one case. Hence, for convenience and to avoid a repetition of many of the same matters, we will dispose of them in one opinion.

Each demand is in the form of an account, beginning March 26, 1905, and continuing uninterruptedly to December 17, 1920, the day Boeckmann died. The wife's account is for "washing, ironing, and cooking" from March 26, 1905, to January 1, 1015, and for "cooking" only from the last-named date to decedent's death. The husband's account is for "room, board, fuel, and light" from March 26, 1905, to January 1, 1917, and for "room, board, fuel, nursing, and light" from said last-named date to the death of decedent. The first item of each account is for the services stated therein from March 26, 1905, to January 1, 1906, and the services rendered in each year thereafter are put clown as one separate item at so much per year, the whole amounting in the wife's case to $942, and having no credits in deceased's favor. In the husband's account, the items charged amount to $3,579, with a credit thereon "for services rendered by deceased for claimant from March 26, 1905, to December 31, 1917, at $6 per month, $864." Every item of the husband's account includes "board," and every item of the wife's account includes "cooking"; but the instructions, submitting the wife's case, covered "washing, and ironing" only. Hence, as the last six items of the wife's account (beginning January 1, 1915, and continuing to the end) were for "cooking" only, she did not recover for any services rendered on or after January 1, 1915. As Boeckmann died December 17, 1920, the last services rendered by the wife, for which she recovered, were performed more than 5 years prior to decedent's death.

The evidence in support of each demand is, in large measure, the same, but, wherever there is any difference, or may appear to be any difference, in the evidence offered in support of the two, the same will be hereinafter carefully noted.

The evidence offered in support of the demands tends to show the following facts: On March 1, 1900, Boeckmann, who was a childless widower, then about 55 years old, leased his farm for a period of 5 years to John Brunnert, one of the claimants herein, and lessor's second cousin of the half-blood. Thereupon Brunnert came to the farm, took charge thereof, and Boeckmann lived with him. The lease provided that Boeckmann was to have his board free for the first year, but was "to do a little work for his board every year thereafter." Shortly after the execution of the lease, Brunnert married and brought his wife (the other claimant) to the farm. The two claimants and deceased were all Germans, and uneducated.

At the expiration of the lease Brunnert bought the farm for $4,000, of which $2,000 was paid in cash. (The other $2,000 was paid in small installments through a period of years.) When Brunnert agreed to buy the farm, an oral agreement was also made that Boeckmann would leave the farm and reside elsewhere.

But Boeckmann did not move away. He continued to live at the Brunnert home, occupying the separate room he had theretofore occupied, carrying the key thereto, and taking his meals with the family. The Brunnert children were taught to call Boeckmann "Uncle," and they did so, though they used the same term to any stranger in the home, whether boarder or guest, and Mrs. Brunnert used that term when speaking to or of the old gentleman in the presence of the children.

After Brunnert bought the farm, he told Boeckmann a number of times to look for another home, and the latter said he would go, and he did make inquiries of various persons with reference to room and board, and some of these inquiries could well be said to be efforts on the part of the old man to obtain lodging and board elsewhere. Nothing came of these efforts. Boeckmann did not secure a place elsewhere, and on one occasion, when Brunnert told the old man to get a place to stay elsewhere, the old man replied that it was not so easy for him to do. Throughout the time elapsing between the purchase of the farm and the old man's death claimants repeatedly asked him to leave, and on these occasions he would agree to do so, but never did. Frequently they would say, in his presence and hearing, and perhaps to him, that they "couldn't board anybody for nothing," but to this he would often make no reply, and at other times, when the subject was broached, "he got awful mean, and we didn't like to have a disturbance in the house," and for this reason the wife says she let him alone, always thinking he would go.

After the expiration of the lease and the purchase of the farm, no express agreement or arrangement was made with Boeckmann that he could stay there, nor was anything said as to what he should ray, and they "never demanded a nickel" of him in payment for the services rendered him, though it is conceded he "was a man of means, and had money in the banks." At no time during the period in which Brunnert was paying, in small installments, the $2,000 he owed on the purchase price of the farm did he ever suggest to Boeckmann that a settlement between them be had, or that any sum for services rendered should be credited on said indebtedness, or that a deduction therefrom be made on that account.

The evidence of claimants further discloses that, during the first 10 or 12 years after Brunnert bought the farm, Boeckmann "shucked corn sometimes, cut a little fire wood, mostly for his own stove, feeding cattle sometimes," and that during the later years of his life "he did a little work for pasture; shucked sometimes a little corn; burned a little scrubs (shrubs or brush?), or something like that"; that he never worked at Brunnert's direction or under his command or supervision, but only when he felt inclined to do so, and when he did not feel like it he did not work.

Claimants' evidence is further to the effect that during the last 5 or 6 years of decedent's life he was "a sick man," afflicted with a kidney and bladder disease so that he was unable to control his urine, and, in consequence, his clothes and also his bed were at all time saturated therewith, so that an offensive odor was present with him, and, emanating from his room, permeated the house so that the chinks or cracks in his room had to be stuffed with rags in an effort to keep the smell out of the rest of the house.

At no time during the years the old man lived with claimants did either of them ever specifically ask the old man to Pay his board or tell him he was being charged therefor, nor did either of them ever expressly tell him that they were intending to charge him or were expecting that he would eventually pay for the services he was receiving. Neither of the claimants kept any memorandum or written record or account of the charges contained in their respective demands. Both of the accounts in said demands were made up from memory alone after Boeckmann's death.

At the opening of the trial defendant interposed the 5-year statute of limitations against each demand; and at the close of the whole evidence defendant offered demurrers to the evidence, but these were overruled. Defendant then invoked the 5-year statute of limitations against each demand by praying instructions telling the jury, in effect, that any services rendered more than 5 years prior to decedent's death were barred by said statute of limitations. These were also overruled, and the case was sent to the jury. Two verdicts were returned, one in John Brunnert's favor for $1,400, and the other in favor of Mrs. Brunnert for $900. Judgments being rendered in these, the defendant appealed.

We will first consider John Brunnert's demand.

It is true that, in the sense of close blood kinship and a moral obligation or kindly desire on that account to support and care for deceased, a family relationship did not exist between claimant and deceased. But that is not the sense, or at least is not always the sense, in which the phrase is used in determining whether a claimant is or is not entitled to pay for services in cases where the question of family relationship arises. If two persons live together in the same household, concurrently rendering services to each other, and each accepting services from the other, then, in the absence of an express contract that payment is to be made in addition to the benefit derived from the arrangement or relationship under which they are living, the law presumes such benefit to be the full recompense to each for the services rendered, and that neither intended to charge or to accept pay for the services he rendered, and the relative pecuniary value of the services rendered by each is not material. Davis v. Davis, 9 Car. & P. 87; Ryan v. Lynch, 9 Mo. App. 18; Dunlap v. Allen, 90 Ill. 108; Williams v. Hutchinson, 3 N. Y. 312, 53 Am. Dec. 301; Riley v. Riley, 38 W. Va. 233, 18 S. E. 509; 11 L. R. A. (N. S.) 873, note. At any rate, before either of such parties, thus living together, can recover for services...