Cole v. Fitzgerald
| Decision Date | 26 May 1908 |
| Citation | 111 S.W. 628,132 Mo.App. 17 |
| Parties | COLE, Appellant, v. FITZGERALD, Executor of Estate of FITZGERALD, Deceased, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Franklin Circuit Court.--Hon. R. Steel Ryors, Judge.
REVERSED AND REMANDED.
John W Booth for appellant.
In order to entitle plaintiff to have her case go to the jury it was not necessary for her to prove an express promise made by her father to her to pay for her services. The evidence was such that therefrom the jury would have been justified in finding an implied contract to pay therefor. The circuit court therefore erred in taking the case from the jury, and its judgment should be reversed. Bonsieck v Boonschmidt's Admr., 63 Mo.App. 421; Hart v Hart's Admr., 41 Mo. 441; Guenther v Birkicht, 22 Mo. 430; Morris v. Barnes, 35 Mo. 412; Snyder v. Free, 114 Mo. 360.
Jesse M. Owen and O. E. Meyersieck for respondent.
(1) The law in Missouri is well settled that where the family relation exists, services performed by one member of the family, are presumed to be gratuitous, and the closer the relation, the stronger the presumption. And in the absence of a contract to pay, either express, or implied from the facts and circumstances in evidence, no recovery can be had. Wood v. Land, 30 Mo.App. 181; Louder v. Hart, 52 Mo.App. 377; Kotsuba v. Miller, 137 Mo. 161. (2) It is essential that there should have occurred what the name implies, a meeting of the minds of the parties on the subject of compensation--a common understanding about it. Fitzpatrick v. Dooley, 112 Mo.App. 173; Lawrence v. Bailey, 84 Mo.App. 107. (3) It is not sufficient that plaintiff may have secretly expected to receive wages, but both sides must have understood they were to be paid for. Tumility v. Tumility, 13 Mo.App. 448; Bircher v. Boemler, 204 Mo. 553. (4) Services rendered by a member of a family merely with a view to, or in expectation of a generosity of the party for whom the services were rendered, by a future will or gift, will not support an implied assumpsit. Guenther v. Birkicht's Admr., 22 Mo. 439.
Appellant is the daughter and respondent the executor of the last will of Squire Fitzgerald, who died February 9, 1904, at Gerald, in Franklin county, where he had resided many years. Appellant presented to the probate court of said county for allowance a demand against her father's estate for services rendered during thirty-five months as his house-keeper. Said services consisted of general domestic work and are alleged to have been performed at the special instance and request of deceased. The demand states the reasonable value of the services rendered during the first twelve months at ten dollars a month and of those rendered during the last twenty-three months at twenty dollars a month, making a total of $ 580. The case was carried to the circuit court by appeal where, on a trial before a jury, the verdict went for respondent, pursuant to a peremptory instruction from the court, and after appropriate motions the present appeal was allowed. No evidence was offered by respondent and the court's instruction was equivalent to sustaining a demurrer to appellant's evidence introduced in support of her demand. Appellant was about fifty years old at the time of the trial. When quite young she married a man named Lovercheck and went to reside with him on a farm not far from Gerald. Three children were born of this marriage, two boys, Pliny and Lester and a daughter Winnie. Lovercheck died and afterwards appellant married William Cole, with whom she dwelt in her own home. Later Cole died and appellant then moved to St. Louis. Meanwhile her children had scattered, Lester and Winnie going to Nebraska and Pliny to St. Louis county. In the year 1900 appellant was called from St. Louis to take care of her mother who was ill. Squire Fitzgerald told one of the witnesses about this but did not say who sent for appellant. She nursed her mother until the latter's death on February 25, 1901. Squire Fitzgerald was then about seventy-two years old, nearly helpless and in need of some one's care. He desired appellant to remain with him, which she did until he died three years later in February, 1904. After appellant went from St. Louis to her father and mother, she performed the household work "inside and outside" as one witness said; attended to all such tasks as cooking, taking care of the rooms, making the fires and milking the cow; and occasionally she chopped wood and fed the horses and cattle, though generally this outside work was done by a hired man. Now and then for a brief interval a woman would be employed to assist in the labor of the household. While appellant was with her father he conducted a boarding house in the town of Gerald and the drudgery incident to this business fell almost entirely on her. The boarders paid Mr. Fitzgerald for their fare and lodging, but on a few occasions he divided small sums of money, say fifty cents or a dollar, with appellant. In April, 1902, deceased wrote to his granddaughter, Winnie Lovercheck, to come from Nebraska and stay in his home with her mother. The granddaughter did so and remained until the death of deceased, occasionally contributing to the expense of the table from her own means. Having explained how appellant came to be in her father's home and what she did there, we will next recite the evidence relied on to establish a contract between her and her father, that she should be paid for her work. A witness testified, in substance, as follows: deceased told him appellant was not willing to stay at Gerald, was lonesome, and he sent for Winnie to come to stay with her; appellant thought she was not getting anything, but he expected to pay her well; he felt like she would come nearer making him a home than any other person and he would rather she would do it; she was complaining of not getting anything for her work, but he intended to pay her; said he meant to build a new house and did not know if it would do him any good, but it would do Bessie and Winnie good when he was gone. Witness said he was not sure the conversation about the house occurred in the same conversation in which deceased said he would pay appellant for her services. Another witness (Mrs. Pardee) testified deceased asked her to stay with his daughter a few days while his wife was ill, saying he wished to give his daughter a rest. While witness was there deceased spoke about his wife and witness said she (Mrs. Fitzgerald) rested "mighty bad" and slept hardly any, which was hard on appellant and witness did not see how appellant stood it. Deceased answered: "I know that, but I intend for her to be well paid for it." The same witness had another conversation with deceased just before he moved into the new house and asked him if his daughter was going to stay with him, saying: "Who would you get if your daughter leaves you?" Deceased answered: "I am not going to give her up; she is going to stay with me; I do not want to break up housekeeping; I haven't many years to live and want to live in my home." Deceased told witness he was going to pay appellant well for taking care of her mother and also said: "I am going to pay her for staying with me;" but did not say how much he would pay her. Winnie Lovercheck testified she was in Nebraska when her grandfather wrote her to come to live with him and be a companion for her mother; that she came back in April, 1902, and stayed at her grandfather's. He was in feeble health then and only walked around a little. Her mother was doing the work and taking care of her grandfather. Witness swore deceased said he wanted her mother to stay there and take care of him; that he was old and did not want to break up housekeeping, and would rather have appellant there than any one else; that he did not want to go away and live with some one else, but wanted witness to stay with her mother and he intended to pay her (the mother) well. He wrote witness appellant was dissatisfied and wanted to return to the city (St. Louis) and therefore he wanted witness to come to her. He said he "would rather have her (appellant) take care of him and if she would stay there she would be well paid." He needed attention like a little child and appellant would often have to stay in his room and watch him all night. On cross-examination the witness, when interrogated about whether she expected her grandfather to give the new house, which cost $ 1,200 to her mother, answered: "No, sir; we thought he intended to pay her in some way."
In one compendium of the law, it is said a child living separate and apart from a parent in comfortable circumstances, is under no obligation to perform services for the parent without payment, as the family relationship no longer exists; and hence the presumption of an intention to pay for services obtains just as though there was no kinship. Stating the proposition in a different form, the treatise says if a child of full age who has left home and become self-supporting returns at a parent's request, a promise is inferred to pay for services rendered. .] Those cases support the text, and Bell v. Moon, 79 Va. 341, supports the further statement of the text, that when children who have left home and set up for themselves, with adequate means of support, return to dwell under the...
To continue reading
Request your trial