Carroll v. Young.

• Citation: 267 S.W. 436
• Decision Date: 29 December 1924
• Docket Number: No. 15038.,15038.
• Parties: CARROLL v. YOUNG
• Court: Court of Appeal of Missouri (US)

267 S.W. 436

CARROLL v. YOUNG

No. 15038.

Kansas City Court of Appeals. Missouri.

December 29, 1924.

Appeal from Circuit Court, Bates County; Charles A. Calvird, Judge.

"Not to be officially published."

Action by Carrie Carroll against William Young, executor of the estate of Philip Carroll, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. O. Jackson and Silvers & Silvers, all of Butler, for appellant.

N. B. Conrad, of Montrose, and De Armond & Maxey, of Butler, for respondent.

TRIMBLE, P. J.

This suit originated on a demand filed in the probate court against the estate of Philip Carroll, deceased, for $3,639 for services rendered deceased in his lifetime and $200 rendered deceased's wife prior to her death. The court, however, sustained a demurrer filed by defendant striking at the last-named count or item, so the $200 claim is no longer in the case. Upon a trial in the circuit court, to which the case went on appeal from the probate court, the jury returned a verdict in which they found for plaintiff in the sum of $3,039, the full amount asked. The defendant appealed.

Deceased and his wife lived alone on a farm. They were aged people, she being 93 when she died in February, 1922, and he 97 at his death in the following month. Plaintiff is their daughter-in-law.

Plaintiff's husband, testifying in her behalf, swore that in March, 1915, when his father was 90 years of age, the latter wrote to him asking him to return and go upon the place, and that he did so, and that he resided with his family in a house thereon about a quarter of a mile from his father's home. His evidence was to the further effect that his wife would go to his father's house and-do everything that was needed to be done, wash and iron, cook their meals, clean and scrub the house, milk and take care of the same, make garden, feed the calves, etc. On cross-examination he said she did this continuously for about seven years, going there from one to three times a day. But, on cross-examination, when asked if his wife went down there every day, he said, "Yes, sir; only when some of the other folks were there; she didn't go then." A brother of the plaintiff, who lived 12 miles away and who visited her "once a year maybe," and who stayed all night at decedent's home once or twice in the seven years, testified that plaintiff "done housework, went down there and helped them, and baked bread, and what should be done. She milked the cow and took care of the milk. During that time Philip Carroll and his wife were old, couldn't help themselves; they had to have somebody to do it." He saw this "lots of times. I saw it when I was up there; different times when I was there. She kept house for her husband. She went down and helped the old folks too." He further said that his sister (the plaintiff) "didn't milk over twice when I was there. She milked once I know of." He saw no one else doing the work for them except his sister, the plaintiff.

Her 15-year old son testified that his mother had been living on decedent's farm seven years; and in that time she washed, ironed, baked, scrubbed carpets and cleaned house, and milked cows for the old folks; that she went to their house on an average of two or three times a day. When asked on cross-examination whether or not she went away visiting during that time, he said, "Yes, once and a while she left"; that she left for about a day, but never did go away for as long as a week; that her people lived down near Montrose in Henry county, and "she went down there every once and a while to visit them".; that his mother "would wash there occasionally, do the family washing for Mr. and Mrs. Carroll; just the two people"; that she would wash the carpets "once or twice a year," a 5-room house with a carpet in each room; that his grandfather furnished the flour and his mother baked bread with it at her home and carried it down to his house about twice a week; that she cleaned house for them once or twice a year; that he had seen other members of the Carroll family there once in a while, one of them about once a year, and this one living on the other side of the same farm south of his grandfather's house; that his daughter lived there up until three years before the trial, when she moved away. On further cross-examination he said that his mother went to decedent's house to cook the meals every day, baked bread for them twice a week, and cooked breakfast, dinner, and supper for them. When asked if she did that during the entire period of seven years, he said, "Yes, not every day, but she took the meals"; that his grandfather's other children came to see him about once every three years.

Another daughter-in-law of deceased, who was living in Butler at the time of the trial, testified that she was out there two or three times, staying all day and night each time, and at these times plaintiff "done all the work, all but what little I helped her"; that the old folks were not well; they were up but weren't able to work; that "toward the last" the old man did not go out and attend to his chores.

Another sister of the plaintiff, who lived about three miles from the home of the old folks, and who visited there "three or four times a year," testified she had seen her sister do work for the old man and his wife. When asked what work plaintiff did, she said:

"Well, she always went down there and done Grandma's washing. She baked bread for her, and she done house cleaning. I have seen her wash carpets down there, and clean house, and she baked bread all the time; of course, when the old folks got so feeble, she had more to do."

When asked who did the work there, she replied: "Sister Carrie done it most of the time, because the old lady wasn't able to do it"; that witness was there "a couple of times" when plaintiff was baking bread, and she also saw her washing rag carpets twice; that witness did not know how many times she saw her sister doing the family washing that she would visit her sister, the plaintiff, and occasionally on those visits she would go over and see the old folks; that she visited them at times when the plaintiff was not there.

Plaintiff's brother, who lived about 9 or 10 miles from decedent's home, testified that plaintiff and her husband lived in the same house with Philip Carroll from 1915 until the house in which they lived at the time of the trial was built. The record does not disclose when this was built. The witness further testified that he visited the home of his sister "once in a while" and visited at the home of decedent "sometimes once a month, sometimes oftener." He saw plaintiff milk the cows and do' their (the old folks') washing; that he saw her do this every week or whenever he was up there.

Plaintiff's brother-in-law, a son-in-law of decedent, who visited at the Philip Carroll home, testified that plaintiff "used to go down there and do chores for them and milk, and I couldn't say that she done all the cooking but she used to help the old lady." He said the last time he was there was a short time before the old folks died. It was about 11 o'clock when he stopped in for a short while and did not stay for a meal. There was nobody there except the old folks; that the old lady was doing what there was to do when he was there. She was up, but he did not know whether she was doing any work or not.

There was further evidence on the part of the above witnesses for plaintiff that the physical condition of decedent's wife "during the later years of her life was fairly well for one of her age." She "couldn't do anything part of the time"; she finally became practically blind and was sick a good deal; that plaintiff did the housework "most of the time because the old lady wasn't able to do it. About 18 months before her death she could not get around except on her hands and knees."

On the part of the defendant, witness James Smith, whose farmhouse was only about 200 yards from decedent's home and who had lived there all his life, testified that he had been at the old man's home "a good many times since 1915." He had worked there "off and on," helped to thresh, build fence, ditch, and "one thing and another around there many times. I was there along toward the latter part of their life many times during the year; wasn't always at work." He further testified that the elder Mrs. Carroll "always did the housework while worked there. I don't think I ever ate a meal's victuals that Carrie Carroll (the plaintiff) cooked. I always ate there when I worked there." The witness further stated that he helped stack grain there in 1919 or 1920, and that the "old lady Carroll did the cooking for the hands always when I worked there." He never saw plaintiff washing or cleaning house there. Other women in the neighborhood would once in a while help clean up; his wife, too, went down once in a while. The neighbor women were not called upon to do this—just merely a neighborly act. He testified that "they," evidently referring to plaintiff and her folks, "were there nearly every day; they milked the cows and taken the milk home, outside of what the old folks used." He was never in the house when anybody cooked a meal but the old lady, though he was never there except for dinner. Never saw anybody there with the elder Mrs. Carroll cooking it. She served the dinner.

Smith's wife, testifying for defendant, said she was there at the Carroll place "a good many times. Sometimes on a visit. Sometimes on one occasion or another. Sometimes she would be sick and I would go down there; sometimes she would be lonesome and call me over the telephone, and I would go. We had a telephone and they had one. During my visits there I saw Carrie Carroll around there twice. Once she came to help paper, at another time Grandma was sick and she came down. I did some work for Philip Carroll, or Mrs. Carroll, mostly all kinds, washing, ironing, such as that occasionally. I washed and ironed at home a...