Burke v. Gale, 3812
| Decision Date | 03 December 1951 |
| Docket Number | No. 3812,3812 |
| Citation | 193 Va. 130,67 S.E.2d 917 |
| Court | Virginia Supreme Court |
| Parties | C. S. TAYLOR BURKE, EXECUTOR, ETC. v. ANNETTE L. GALE. Record |
John Barton Phillips and Henry B. Crockett, for the plaintiff in error.
Henry P. Thomas and John W. Waller, for the defendant in error.
On October 26, 1949, Annette L. Gale, hereinafter called plaintiff, filed her original notice of motion for judgment against C. S. Taylor Burke, Executor of the estate of Maggie L. Eidsness, hereinafter called defendant, seeking to recover for services rendered Mrs. Eidsness, extending over a period of several years prior to her death. A plea of the statute of limitations was filed and plaintiff, over the objection of defendant, was permitted to amend, which amendment alleged that plaintiff had 'performed various and sundry personal services at the request of and for the benefit of Maggie L. Eidsness in return for which personal services the said Maggie L. Eidsness promised, covenanted and agreed to make suitable provision for the plaintiff in her will.'
To the amended notice the defendant filed a demurrer relying upon two grounds, (1) that it states an entirely new cause of action, and () that the allegations are not sufficiently certain and definite to create a contract as a matter of law. The court overruled the demurrer and the defendant filed a plea of the general issue. Upon this issue a jury verdict in favor of plaintiff in the sum of $4,000 resulted, and from the judgment of the court entered thereon a writ of error was awarded.
The uncontroverted evidence in this case shows that the plaintiff lived in Arlington county Virginia, that Mrs. Eidsness was her stepmother, having married plaintiff's father, Magnus L. Eidsness, in 1917; both Mr. and Mrs. Eidsness were old and infirm, and for long periods Mrs. Eidsness was confined to her bed. Between February, 1942, and February, 1946, the plaintiff traveled back and forth by bus from her home to the home of Mrs. Eidsness in Alexandria. She made these trips on an average of three times a week except for the occasions when she stayed with her stepmother for several nights at a time because she was too ill to be left alone.
The record shows that plaintiff gave up a job in order to take care of her stepmother, that she nursed her, did the cooking and laundry, and cleaned and managed the home generally. These services were performed by plaintiff until she was compelled to go to a hospital for an operation in February, 1946. Before leaving for the hospital plaintiff took her stepmother to Barcroft where plaintiff's sister lived. Here Mrs. Eidsness was cared for by plaintiff's sister for three and one-half months, and later, Mr. Eidsness having died, she was placed in a nursing home.
Plaintiff testified that Mrs. Eidsness told her in the presence of Mrs. Hall that 'she would see that I was taken care of in her will', and on numerous occasions she said, 'I will never forget this, I will remember you for this, I will take care of you for this.' Plaintiff's sister, Mrs. Hall, corroborated her regarding Mrs. Eidsness' promise to remember her in her will. Mrs. Hall further says that Mrs. Eidsness told her that plaintiff had done so much for her when she was sick death that she was left nothing.
Five witnesses in addition to plaintiff testified as to the burdensome services rendered by her to decedent. No evidence was introduced by the defendant, and no attempt was made to show that the services were not rendered. The record shows that the services were faithfully rendered by plaintiff and willingly accepted by the ill and infirm stepmother.
The defendant moved to strike the evidence contending that 'there hasn't been any evidence to show there was any agreement, express or implied' to compensate the plaintiff.
The jury was amply and properly instructed by the court on all phases of the case. Instruction C gives the plaintiff's theory of the case as follows:
'The court instructs the jury that if you belief from a preponderance of the evidence that Maggie L. Eidsness agreed to make suitable provision in her will for the plaintiff, and that on the strength of this promise, the plaintiff performed services of value for the said Maggie L. Eidsness, for which no certain compensation was agreed on, and that the said Maggie L. Eidsness accepted and profited by such services, then it shall be your duty to find for the plaintiff in an amount equal to the reasonable value of the services performed, together with any bus fare the jury believes from a preponderance of the evidence was expended by the plaintiff in connection with the said services.'
Instructions 1 and 2 give the theory of the defendant as follows:
'1. The court instructs the jury that the plaintiff must prove her case by a preponderance of the evidence and if you believe from the evidence that the alleged services by the plaintiff were not rendered in consideration of any promise of Maggie Eidsness to make provision for her in her will, you will find for the defendant.
'The court further instructs the jury that there can be no recovery for service rendered by the plaintiff to her father.
Under the facts of this case the jury was justified in accepting the plaintiff's theory and in finding a verdict in her favor. Hendrickson v. Meredith, 161 Va. 193, 170 S.E. 602; Ricks v. Sumler, 179 Va. 571, 19 S.E. (2d) 889, and Simpson v. Scott, 189 Va. 392, 53 S.E. (2d) 21.
'The recovery for services rendered pursuant to an implied promise to compensate therefor by will, or on an express promise to devise poperty as compensation for services where the amount of property promised is indefinite, is...
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Newman v. Newman
...accepted proposition that a stipulation is "an agreement between counsel respecting business before a court." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951) (quoting Black's Law Dictionary 1660 (3d ed. 1933) ("Stipulation")); see also Lane v. Lane, 32 Va.App. 125, 129, 526 S.E.2......
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...the risk of such reliance being undermined later. Once a stipulation is made, "there can be no objection to it." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951). The trial court, therefore, did not err in refusing to sustain Dr. Rahnema's belated objections to the defense exhibit......
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...child to testify. We disagree. A stipulation is "an agreement between counsel respecting business before a court." Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951).A stipulation of counsel, particularly when relied upon by a court, cannot later be unilaterally withdrawn. Trial jud......
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Northampton Cnty. & Va. Ass'n of Counties Grp. Self-Insurance v. Somers, Record No. 0542-15-4
...respecting business before a court.'" Lane v. Lane, 32 Va. App. 125, 129, 526 S.E.2d 773, 775 (2000) (quoting Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951))). In this case, there is no dispute that no agreement was reached, with claimant noting before us "[w]hen the [proposed] ......