Crowley v. Dagley

• Decision Date: 06 October 1913
• Citation: 161 S.W. 366,174 Mo. App. 561
• Parties: CROWLEY v. DAGLEY.
• Court: Missouri Court of Appeals

161 S.W. 366

174 Mo. App. 561

CROWLEY v. DAGLEY.

Kansas City Court of Appeals. Missouri.

October 6, 1913.

Rehearing Denied December 1, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 221)— CLAIMS AGAINST ESTATE—CARE BY ADULT CHILD.

Where personal services are rendered to an aged and partially helpless person by an adult child, the ordinary presumption that such services are to be paid for, which would arise if performed by a stranger, does not obtain, and the opposite presumption must be indulged, that, though the child is not legally bound to serve the parent gratuitously, he does so without expectation of pecuniary reward.

2. EXECUTORS AND ADMINISTRATORS (§ 221) —SERVICES TO AGED PARENT—COMPENSATION.

The presumption that, where services are rendered to an adult parent by a child, they are without expectation of reward may be rebutted by proof to the contrary, provided the evidence showing that the recipient of the services intended to pay and the servant expected to receive compensation is sufficient to create a contractual obligation to pay.

3. EXECUTORS AND ADMINISTRATORS (§ 221)—SERVICES TO AGED PARENT—COMPENSATION.

Where plaintiff filed a claim against her mother's estate for services rendered to the mother in her last illness, the burden was on plaintiff to show affirmatively the existence of a contractual understanding between her and her mother that the services should be paid for in money.

4. EXECUTORS AND ADMINISTRATORS (§ 221)—CARE FOR AGED PARENT—COMPENSATION—EVIDENCE.

Where a claimant cared for and boarded her mother during the last months of her life, during which she was an invalid, evidence that on various occasions the mother expressed satisfaction with claimant's nursing, stated that she wanted claimant paid for caring for her, and that her other children should have what was left, and on other occasions stated to a noninterested person that she wanted claimant well paid for what she had done, etc., was insufficient to show that claimant's sacrifices for plaintiff were not the result of filial gratitude, and was insufficient to establish a contract to pay therefor enforceable against the mother's estate.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by Amanda Crowley against Luther A. Dagley, as administrator of the estate of Emiline P. Asbury. Judgment for plaintiff, and defendant appeals. Reversed.

R. T. Stephens and E. L. Riley, both of Excelsior Springs, for appellant. Martin E. Lawson, of Liberty, for respondent.

JOHNSON, J.

This suit originated in the probate court of Clay county on a demand filed by plaintiff against the estate of her deceased mother. The only item before us for consideration is the following: "To personal services rendered said Emiline P. Asbury from August 8, 1910, to February 29, 1912, boarding her, furnishing rooms, washing her clothes and bedding, waiting on deceased, who during all that time was sick and often helpless, changing her clothing, watching her by day and by night, especially during the last three months of said time, when the mind of deceased was affected, and she needed constant care and attention, 80 5/7 weeks at $15, $1,210.70. * * * For said attention the deceased agreed to pay, and especially promised to pay for the care, attention, etc., first above stated." The issues were tried in the probate court and afterwards in the circuit court, where the cause was taken by appeal. At the latter trial the jury returned a verdict for plaintiff in the sum of $1,000, and, after unsuccessfully moving for a new trial and in arrest of judgment, defendant, administrator, appealed.

The principal contention of counsel for defendant is that the verdict and judgment are unsupported by substantial evidence, and that the court erred in not sustaining a demurrer to the evidence. On the other hand, counsel for plaintiff argue that the evidence discloses the existence of an implied agreement of the decedent to pay for the services in controversy.

The facts of the case as shown by the evidence of plaintiff thus may be stated: Mrs. Asbury, the mother of plaintiff, was 82 years old at the time of her death, which occurred in Excelsior Springs, February 29, 1912. Her husband had died two or three years before the commencement of the services in dispute, and she had been living alone at their old home in Kearney. Plaintiff, a married woman, lived with her family on a farm near Kearney. Some time before August 8, 1910, she went to live with her mother, who had fallen into ill health, and could no longer live alone. One the date just mentioned plaintiff removed with her family and mother to Excelsior Springs chiefly for the benefit of the health of the mother. They lived in a rented house for a time; but two or three months before her mother's death plaintiff's husband bought a residence for the family. During the time they occupied a rented house Mrs. Asbury paid half of the rent, but paid nothing for her maintenance and the care and attention bestowed upon her by plaintiff. She was afflicted with a disease of the heart, which subjected her to fainting attacks, and on that account and because of her increasing feebleness required constant care and attention. Plaintiff, herself in poor health, faithfully discharged the duties of a nurse and affectionate daughter during the period for which she seeks compensation. The witnesses do not agree about the degree of the aged woman's incapacity to take care of herself; but the evidence as a whole clearly shows that she was feeble, childish, and afflicted with severe attacks of some form of heart disease. That her condition required and she received at her daughter's hands the greatest care and attention are facts about which there can be no reasonable dispute. One day while moving about in the house she accidentally fell to the floor, and broke one of her legs, from the effects of which she died the next day.

A great-granddaughter of Mrs. Asbury, who was a member of plaintiff's family, testified: "Q. Miss Thelma, did your grandma ever say anything to you about the care that Mrs. Crowley was giving her? A. Yes, sir. Q. What did she say about it? A. Well, she said that she wanted Aunt Amanda paid for taking care of her; that she wanted Mandy and Aunt Ida to have what she left. Q. Ida is her sister Mrs. Mullen? A. Yes, sir. Q. How many times did she say anything of that sort to you? A. Oh, she said it several times. Q. What did she say about the kind of care Mrs. Crowley was giving? A. She thought Aunt Amanda was giving her good care. Q. When did she say these things to you? A. She talked to me of night when we would go to bed when she couldn't sleep; lie there, and talk to me. Q. Was it at those times when she said those things about paying her well for it? A. Yes, sir."

The wife of Mrs. Asbury's physician, who was on intimate terms with the family, testified: "Q. What was her physical condition, Mrs. Clark? A. Well, she seemed feeble, I think weak. Q. Who was waiting...