Chandler v. Hulen

• Decision Date: 17 May 1934
• Docket Number: 32174
• Citation: 71 S.W.2d 752,335 Mo. 167
• Parties: B. C. Chandler and Mrs. B. C. Chandler v. G. L. Hulen, Executor of the Estate of David M. Hulen, Appellant
• Court: Missouri Supreme Court

71 S.W.2d 752

335 Mo. 167

B. C. Chandler and Mrs. B. C. Chandler v. G. L. Hulen, Executor of the Estate of David M. Hulen, Appellant

No. 32174

Supreme Court of Missouri

May 17, 1934

Appeal from Cooper Circuit Court; Hon. Walter S. Stillwell Judge.

Affirmed.

Hulen & Walden and Pendleton & Martin for appellant.

The court erred in overruling Instructions D-D, D-E and D-F, in the nature of a demurrer at the close of all the evidence in the case. (a) A family relationship existed. Wood v Lewis' Estate, 167 S.W. 666; Nelson v Poorman's Estate, 215 S.W. 753; Brunnert v. Boeckmann's Estate, 258 S.W. 768; Thomas v. Fitzgerald's Estate, 297 S.W. 425; Weir v. Carter's Estate, 224 S.W. 147. (b) Under the existence of a family relationship, the respondents wholly failed to make a case for the jury. Woods v. Land, 30 Mo.App. 176; Smith v. Davis' Estate, 230 S.W. 670; Brand v. Ray, 137 S.W. 623; Rose v. Mayes, 139 Mo.App. 246; Wood v. Lewis' Estate, 167 S.W. 666; Clow v. Wormington, 206 S.W. 415; Morrison v. Morrison, 196 S.W. 1083; Taylor v. George, 161 S.W. 1187; Erhart v. Dietrich, 118 Mo. 418; Kostuba v. Miller, 137 Mo. 161; Lillard v. Wilson, 178 Mo. 153; Crowley v. Dagley, 161 S.W. 366.

Rubey M. Hulen, Edwin C. Orr and Roy D. Williams for respondents.

(1) The evidence offered by respondents made a case for the jury and the trial court properly overruled appellant's demurrer. Smith v. Sims, 258 S.W. 1033; Hart v. Hess, Admr., 41 Mo. 446; Garner v. McKay, 15 S.W.2d 909; Cole v. Fitzgerald, 132 Mo.App. 24; Lillard v. Wilson, 178 Mo. 158; Fry v. Fry, 119 Mo.App. 478; Hartley v. Hartley, 173 Mo.App. 23; Stone v. Troll, 134 Mo.App. 311; Wandling v. Broaddus, 265 S.W. 1004; Baker v. Lyell, 242 S.W. 707; Thayer v. Palen, 34 S.W.2d 537; Guthrie v. Fields, 299 S.W. 142; Broyles v. Byrne, 13 S.W.2d 561. (2) Appellant cannot claim error in the giving of an instruction requested by him. Meffert v. Lawson, 287 S.W. 613; Bergeman v. Ry. Co., 104 Mo. 89.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This cause originated in the Probate Court of Boone County, wherein plaintiffs filed demand against the estate of David M. Hulen, deceased, for board and lodging furnished and services rendered to said Hulen from June 8, 1914, until his death September 22, 1930. From an adverse judgment in the probate court defendant appealed to the Circuit Court of Boone County. That court, on defendant's application, ordered a change of venue to Cooper County where, upon trial to a jury, plaintiffs recovered judgment for $ 8,700, the full amount of their claim. Defendant appealed. The only substantial controversy on this appeal is whether or not the evidence was sufficient to make a case for the jury, the defendant contending that it was not and that the court should have sustained his demurrers to the evidence and directed a verdict in his favor. Both sides by their instructions submitted the case on the theory that a family relation existed between plaintiffs and Mr. Hulen, casting upon plaintiffs the burden of producing evidence from which an agreement or mutual understanding that the services rendered were to be paid for can be found. The case is briefed here on that theory. We shall therefore assume that such relation existed. Plaintiffs' evidence tended to prove the following:

David M. Hulen was eighty-four or eighty-five years old when he died. He had been a farmer, living on a farm of two hundred acres which he owned near Hallsville in Boone County until he sold it to plaintiff, C. B. (Burl) Chandler. Plaintiffs were not related to him by blood but Burl had been reared by Mr. Hulen and his wife, who had no children of their own. He lived with the Hulens as a member of the family, but without being legally adopted, from about 1879 when he was four or five years old until he reached manhood and he and his coplaintiff were married. The date of their marriage is not shown. Mr. Hulen appears to have entertained strong affection for both the plaintiffs, which feeling they reciprocated. In 1912 Mr. Hulen, being old and infirm, desired to move to Centralia. Burl then owned a forty-acre tract nearby. Hulen asked Burl to sell the forty and buy his two hundred-acre farm, naming $ 16,000 as the price. C. W. Chandler, a brother of Burl, who heard part of the conversation, testified that Burl said it was too much and Mr. Hulen told him to go ahead and sell his forty "and if he (Hulen) could get enough off of it (the two hundred acres) to pay off a debt he owed and have a living out of it he would be satisfied." Within a few days Burl sold his forty and bought the Hulen two hundred acres at the named price of $ 16,000. C. W. Chandler said that Burl paid in cash all the money he and his wife had but witness did not know the amount. Neither of the plaintiffs testified, being incompetent because of the death of Mr. Hulen. Burl gave Mr. Hulen his note for $ 10,000, secured by deed of trust on the two hundred acres. It seems Burl also gave Mr. Hulen a note for $ 3,500, unsecured, but whether at this time or later does not appear and it is not shown what became of that note. Mr. Hulen and his wife then moved to Centralia where they lived for about two years, when Mrs. Hulen died, the plaintiffs meanwhile living on the two hundred acre farm. Upon Mrs. Hulen's death Mr. Hulen came back to live with plaintiffs. That was about June 8, 1914, and from that time until his death, a little over sixteen years later, he lived with them. That is the period covered by plaintiffs' claim. For some time, not definitely shown, they remained on the farm. Plaintiffs then moved to Hallsville, taking Mr. Hulen with them. During the period covered by the claim Mr. Hulen was badly crippled, having had one hand and one leg seriously injured. He could walk only by the aid of crutches or a crutch and a cane and his hands were "shaky," "palsied." He suffered from a kidney trouble resulting that during at least the latter part of the period covered by the claim he was unable to control his urine. He required much care and nursing, especially toward the last, which, with board and lodging, washing and mending, etc., were furnished him by plaintiffs. Upon moving to Hallsville plaintiffs added a room for Mr. Hulen to the house they there occupied because he could not go up and down stairs. Since no point is made in appellant's brief that the amount awarded by the jury is excessive or beyond the reasonable value of the services as shown by the evidence it is needless to state in detail the amount and character of the services rendered by plaintiffs. Suffice it to say the evidence is clear and undisputed that they ministered to Mr. Hulen's every need and want with all the kindness and affection that could have been expected had they been near to him in blood and that he fully appreciated their care and attentions. On numerous occasions during the sixteen years covered by plaintiffs' claim Mr. Hulen expressed his satisfaction with and appreciation of the care and services he was receiving from plaintiffs and his intention to compensate them.

George Chandler, another brother of Burl, testified that when Mr. Hulen was leaving the farm to go to Centralia, "I asked him what he expected to do for a living and he said he didn't have anything to do -- that he was expecting his living from Burl."

Kenneth Chrisman testified that in 1917 he had a conversation with Mr. Hulen in which he said to the latter, referring to Burl's purchase of the farm and the note he had given: "He can't pay for that, can he?" To which Mr. Hulen replied: "I don't intend for him to pay for it. I want him to have it and when I'm gone I want everything to go to him, including this note."

Alfred Barnes testified that about 1925 this occurred: "I was trying to rent it (the farm) from him (Mr. Hulen) and I asked him what he was going to do with it and he said: 'I sold it to Burl,' and he told me what he got for it and I said: 'Burl may have a hard time paying for that,' and he said, 'I never expect him to pay for it; when I'm gone I expect him to have it all for taking care of me." "Yes, sir, he said he never expected him to pay for it; he said, 'If he takes care of me that's all I expect him to do, and it all goes to him.'"

J. P. McKenzie testified that about 1921 or 1922 Mr. Hulen "was telling me about some work he had to do and I said: 'Uncle Dave, you have enough to do you the rest of your days, and he said: 'Well, I want some left; when I'm gone I want enough left to pay Mr. and Mrs. Chandler for their services to me.'"

Mrs. Willard Rogers testified: "Eight or nine years ago I was up spending the day with my daughter and Uncle Dave and Mr. and Mrs. Chandler came up and spent the afternoon and Uncle Dave was telling me about his sickness and he said: 'Mrs. Rogers, they are wonderful children to me and when I pass away I want them to have every dollar that I have.' "Q. Did he say for what? A. For taking care of him."

Frank Berkley testified that he heard Mr. Hulen say, about two years before his death, that "if anything would happen to Burl he didn't know what would become of him." Mr. Hulen was then "badly crippled," "very nervous-palsied," and appeared anxious about Burl who was temporarily in a hospital receiving treatment for some ailment.

The $ 10,000 note shows credits of interest payments endorsed on the back thereof in each of the years 1913 to 1916 inclusive and 1918, aggregating $ 5,357.90; a credit dated March 1, 1922, of $ 5000; a credit, dated January 31, 1928, of "$ 100 for taxes advanced by B. C. Chandler;" a credit of $ 100, dated December 9, 1929, and this endorsement, not dated but appearing between the credits dated February 17, 1925, for $ 100 interest and that dated January...