Cronn v. Fisher

• Decision Date: 30 December 1966
• Citation: 245 Or. 407,422 P.2d 276
• Parties: Blossom B. CRONN, Respondent, v. Dagmar S. FISHER, Executrix of the Estate of Bardi G. Skulason, Deceased, Appellant.
• Court: Oregon Supreme Court

Page 276

422 P.2d 276

245 Or. 407

Blossom B. CRONN, Respondent, v. Dagmar S. FISHER, Executrix of the Estate of Bardi G Skulason, Deceased, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 7, 1966.

Decided Dec. 30, 1966.

Glenn R. Jack, Oregon City, argued the cause for the appellant. On the briefs were Jack, Goodwin & Anicker, and Ashley Greene, Oregon City.

George L. Hibbard, Oregon City, argued the cause for the respondent. On the brief were Hibbard, Jacobs, Caldwell & Kincart, and Paul D. Schultz, Oregon City.

Before McALLISTER, C.J., and PERRY, O'CONNELL, DENECKE and REDDING, JJ.

REDDING, Justice pro tem.

Defendant Dagmar S. Fishe, executrix of the estate of Bardi G. Skulason, deceased, appeals from a judgment of the Circuit Court for Clackamas County awarding plaintiff a recovery for nursing services allegedly rendered the decedent and for which plaintiff claims she was not compensated. Plaintiff in her complaint asserts two causes of action, the first upon an express contract and the second upon an implied promise to pay, each seeking reimbursement for services rendered over the six-year period immediately preceding the decedent's death. The trial court found there was not an express contract but entered judgment for plaintiff on plaintiff's second cause of action based upon implied contract. Both parties waived a jury and stipulated to try the matter before the court.

The decedent, Bardi J. Skulason, was an able and distinguished member of the Oregon bar, who practiced in Portland for many years. Indeed, although he lived to be 92 years of age, he continued in the practice until less than six months before his death in December, 1964. He left surviving him one daughter, the executrix herein.

The plaintiff, 25 years the decedent's junior, was a trained medical technician having spent virtually her entire adult life in the employ of various doctors and hospitals.

Plaintiff became acquainted with decedent's son, Ralph, in 1933 through her sister who met Ralph while he was hospitalized for alcoholism. Ralph and plaintiff's sister became good friends. Concerning Ralph, plaintiff testified: '* * * my sister was very fond of him and felt very sorry for him, and he started coming to our home.' Plaintiff herself first met the decedent when on Thanksgiving Day, 1937, Ralph, who had been invited to dinner at the home of plaintiff, her sister and mother, brought his father, the decedent, with him. Decedent was separated from his wife and was unhappy with surroundings at the University Club where he resided, and because thereof, came to live with plaintiff and her mother in the spring of 1938. In this connection, plaintiff, speaking of the decedent, testified as follows:

'Well, in the spring of '38 he was living at the University Club, and he missed his yard and garden very much and was, said he was practically dying from not being out because he loved the outdoors, and, so, on May the 20th he came to live at my summer home.'

Decedent would have dinner at the home of plaintiff and her mother in Portland each evening, then drive to plaintiff's mountain cabin near Sandy where he would spend the night, returning to the Portland home of plaintiff and her mother for breakfast the next morning. This continued from May, 1938 until it became uncomfortably cold at the mountain cabin in October of the same year, when he moved into the Portland home of plaintiff's mother, with whom plaintiff and her husband were living. Plaintiff's husband was in ill health and succumbed in February, 1939. Plaintiff's mother passed away in 1946. Decedent continued to live with plaintiff and her mother until September, 1941 when decedent's daughter and her family returned to Portland from the Hawaiian Islands where they had lived for many years. Mrs. Fisher, the daughter, and executrix herein, and her family took up residence in decedent's home in Milwaukee in September, 1941, whereupon decedent moved in with the daughter. Thereafter, except for five or six weeks following recovery from a coronary attack in 1954 and except for approximately two months during his last illness, decedent spent every weekend with plaintiff at her home in Portland in the winter and at her cabin during the summer, with occasional winter trips to the cabin. Decedent usually spent holidays with his family but was always with plaintiff on New Year's Day.

In August, 1954 decedent suffered a serious coronary occlusion and after five days in the hospital, at decedent's insistence, he was taken by ambulance to stay at plaintiff's home, where he spent six weeks recuperating. Plaintiff, in caring for decedent, was on duty 24 hours per day. This care included the care ordinarily administered by a registered nurse, such as administering medication, hypodermic shots, checking blood pressure, feeding and bathing the decedent. During this period, decedent contributed $20 a week for the purchase of groceries, and on October 6, two days after leaving her home, decedent telephoned plaintiff advising her that he had executed a will and therein had made provision for her by way of payment for the care she had given him for the six weeks' service she had rendered. This is confirmed by decedent's will, admitted to probate, in which plaintiff is bequeathed $1,000.

Plaintiff claims that from September, 1941 until the summer of 1964 ordinarily she would pick the decedent up at his office Friday evening, take him to her Portland home, returning him to his office Monday morning after breakfast. During the summer months, she would take the decedent to her mountain cabin Saturday morning, returning decedent to his office Monday morning after breakfast. On the occasions when she did not pick the decedent up at his office Friday evening, she would ordinarily pick him up at his home on Saturday morning. Plaintiff's claim is for general nursing services, and because of the statute of limitations, her claim is limited to the six-year period beginning February 20, 1959.

Plaintiff's total claim was for $10,171 consisting of the following charges per year: $1,287 in 1959; $1,574 in 1960; $2,194.50 in 1961; $1,518 in 1962; $1,452 in 1963; $2,475.50 in 1964. The trial court allowed plaintiff $4,670 and after some off-sets, entered a judgment in her favor for $4,334.

Each week during the entire period from September, 1941 to July, 1964, when decedent would spend the weekend with plaintiff, he would give her $20 plus any monies plaintiff might have expended in decedent's behalf, such as for medicines which plaintiff was able to purchase at wholesale. It might here be observed that plaintiff gave decedent a weekly injection of Vitamin B-12. Plaintiff maintains that these $20 payments were on account of groceries. Computations made from the decedent's check stubs would indicate that the weekly payments made to the plaintiff during the period in question totaled $1,184.82 in 1959; $1,044 in 1960; $1,601.44 in 1961; $2,555.53 in 1962; $1,761.21 in 1963; and $1,192.40 in 1964. In addition, decedent ordinarily made gifts of from $25 to $50 to the plaintiff on her birthday and gifts ordinarily of from $50 to $100 on Christmas. On one occasion, decedent represented plaintiff in a lawsuit which did not go to trial and for which he made no charge. Decedent also paid the real property taxes on plaintiff's cabin in amounts from $65.74 in 1958 to $70.82 in 1962, and $134.83 in 1963. Decedent also made total expenditures in excess of $1,500 involving repairs and improvements to plaintiff's cabin.

Counsel for defendant contend that the plaintiff's relationship with the decedent over the years was purely social, one of host and guest, rather than one of employment. A careful study of the record, as will appear from the following brief review thereof, supports the trial judge's finding that the plaintiff, at the request of decedent, performed services for the decedent in the nature of practical nursing and domestic and general care during 1959 to 1964, inclusive, at various times and for various periods of time, both at plaintiff's home and cabin and at the decedent's home.

Following decedent's recovery from his coronary attack in 1954, he did not stay at plaintiff's home for a month or six weeks. According to plaintiff, he then requested that he be permitted to return on weekends. In this connection plaintiff testified as follows:

'* * * with the exception in 1954, after he left my house. As I said, I was extremely tired, and I think there was, maybe, a month or six weeks in '54 that he did not come, and he started missing his B-12 shots and he called me then and wanted to know if he couldn't come back to my house on the weekends and resume his B-12 shots.'

Plaintiff's claim is limited to the six-year period beginning in February, 1959. The decedent in 1959 was 86 years of age and while he was mentally alert and able to carry on the practice of law, he was, nevertheless, to some extent and in some respects dependent on others. He required weekly shots of Vitamin B-12; he had to be chauffeured to his office and from place to place for he had not driven a car for nearly 20 years; at the close of each working day he was extremely tired and longed for quiet and for the out-of-doors. This is revealed by the testimony of the plaintiff hereinabove referred to. The plaintiff further testified:

'A Well, first, about twelve years ago I told Mr. Skulason I was going to be married, and he became very nervous and upset and developed herpes in his hair and head, and he went to San Francisco, and he called me three different times, and he said his life, to be seven days in Milwaukie, (referring to living with his daughter and her family in Milwaukie) just was just unbearable, and if I did not marry he was going to take care of me, and so he came home and I continued to take care of them. Then, in the summer of 1963, he came one weekend and he was--he just had stars in his eyes...