Cole v. Waters

• Decision Date: 06 May 1912
• Citation: 147 S.W. 552
• Parties: COLE v. WATERS.
• Court: Missouri Court of Appeals

147 S.W. 552

COLE v. WATERS.

Springfield Court of Appeals. Missouri.

May 6, 1912.

Motion to Modify Opinion Denied June 3, 1912.

1. WITNESSES (§ 140)—DISQUALIFICATION.

Rev. St. 1909, § 6354, provides that no person shall be disqualified as a witness by reason of his interest in the event provided that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead the other party to the cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party whose right of action or defense is derived to him from one who is, or if living would be, subject

to such disqualification shall be admitted to testify in his own favor. Held, in an action against an administrator for the value of board and room furnished to decedent, that the fact that decedent left no will or surviving children would not disqualify decedent's brother from testifying as to facts within his knowledge, though he was interested in decedent's estate; the statute not disqualifying those claiming through a decedent.

2. TRIAL (§ 194) — INSTRUCTIONS—COMMENT ON EVIDENCE.

Defendant requested an instruction in an action against an administrator for the value of board, etc., furnished decedent that, if the jury believed that plaintiff never made any claim for payment on account of board and washing for decedent during his lifetime, then plaintiff cannot recover unless she has clearly established a contract between her and decedent showing an intention by decedent to pay for such services and an intention by plaintiff to charge and receive pay therefor, and that a failure by plaintiff to make claim or demand for payment during decedent's life on account of taking care of, boarding, and washing for decedent, if she did fail to make such claim or demand, raised a presumption that decedent paid for such services if there was a contract between him and her that he should do so. Held, that the charge was properly refused since it improperly commented on the evidence.

3. EXECUTORS AND ADMINISTRATORS (§ 253)— CLAIMS AGAINST ESTATE — ACTIONS—INSTRUCTIONS.

Though the above instruction was not given, defendant was sufficiently protected by an instruction that if plaintiff never demanded payment during decedent's lifetime for the services claimed to have been rendered by her in caring for, boarding, and washing for him, it must be presumed from such fact that decedent paid for such services, and, before the jury could find for plaintiff under such circumstances, they must find that decedent did not pay for the services.

4. TRIAL (§ 242)—INSTRUCTIONS — MISLEADING INSTRUCTIONS.

An instruction given in an action against an administrator for board and care furnished decedent that the burden was on defendant to prove the defense of payment for services, and if defendant had failed to so prove to the reasonable satisfaction of the jury they should not find against plaintiff on that account, might have been misleading; a sufficient instruction being that one of the defenses to the allowance of the claim was that of payment and that the burden thereon was upon defendant, and the jury should find the issue of payment for plaintiff unless defendant showed payment by a preponderance of the evidence.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Octavia Cole against William H. Waters, administrator of the estate of Allen Fox, deceased. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Thomas & Hackney and Shannon & Phelps, all of Carthage, for appellant. W. R. Shuck, of Webb City, and R. M. Sheppard, of Joplin, for respondent.

NIXON, P. J.

Plaintiff on May 1, 1911, filed in the probate court of Jasper county an account against the estate of Allen Fox, deceased, for taking care of, boarding, and washing for, deceased from June 1, 1904, until July 1, 1909, being for five years and one month, at $25 per month, amounting to $1,525 with interest at 6 per cent. from July 1, 1909, having the usual affidavit attached thereto. The case was tried in the probate court and there was a finding for the defendant from which the plaintiff duly appealed to division No. 1 of the circuit court of Jasper county. The case was then tried during the November term and judgment rendered on December 4, 1911, in favor of the plaintiff for $1,578.38, and the case is here on defendant's appeal.

The plaintiff offered evidence tending to show that Allen Fox lived at plaintiff's house and that he was boarded and lodged and his washing done by the plaintiff from about June 1, 1904, until July 1, 1909, being for a period of five years and one month; that Allen Fox was about 60 years of age and in his second childhood; that he was in bad health and had a running sore in his ear. There was evidence that when Allen Fox first came to plaintiff's house to live she had gone to the woods and the whole family was away, and when they reached home they found him there; that he had climbed in the window and left his personal belongings; and that he came out in the yard and said, "Mamma, I come to stay until I die." He said, "Mamma, you will get paid for this." He made this statement a good many times. He was never seen to have any money in his possession, only what change he had in his pockets all the time. Virgie Cole for plaintiff also testified: "He never paid my mother anything that I know of. He said his money was in the bank and could not get it; he said Tillman had the check book. Tillman was his brother." She also testified that she knew of Allen Fox going to see Tillman Fox. "I think I heard him say he went to see if he could get some money; sometimes he would say he would get some, and sometimes he would say Tillman would not let him have it. I have heard him speak about being there several times; don't know exactly how many." The evidence tended to show that board and lodging and washing in the neighborhood where plaintiff lived at the time deceased lived at her home was reasonably worth $6 a week.

It was shown on behalf of the defendant that the deceased, Allen Fox, had from $10,000 to $12,000 loaned out and in the bank at Neck City or Alba, and therefore had ample means to pay for his board and lodging and washing. Jerry Smith testified for the defendant as follows: "I had some conversation with Mrs. Cole about compensating her for caring for Mr. Fox. This was when Mr. Fox was living at plaintiff's house in Oklahoma and was coming back to Missouri. I gave...