Douglas v. Beebe

• Decision Date: 25 September 1923
• Docket Number: 5169
• Citation: 46 S.D. 559,195 N.W. 165
• Parties: W. E. DOUGLAS, Plaintiff and respondent, v. H. E. BEEBE, Administrator of the Estate of W. L. Bullis, deceased, Defendant and appellant.
• Court: South Dakota Supreme Court

46 S.D. 559

195 N.W. 165

W. E. DOUGLAS, Plaintiff and respondent,

v.

H. E. BEEBE, Administrator of the Estate of W. L. Bullis, deceased, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Edmunds County, SD Hon. J. H. Bottum, Judge #5169--Reversed Campbell & Fletcher, Aberdeen, SD Attorneys for Appellant. J. M. Berry, Ipswich, SD Attorneys for Respondent. Opinion filed September 25, 1923

GATES, J.

Plaintiff presented a claim to the defendant administrator in the sum of $11,908, for 303 months' services rendered to the deceased, Dr. Bullis, during his lifetime, between June 1, 1889, and March 1, 1919. The doctor died in January, 1920. The claim was allowed by the county court in the sum of $3,000. Being dissatisfied therewith, plaintiff brought this action against the administrator, which resulted in a verdict and judgment of $7,000 in plaintiff's favor. This appeal by the administrator is from the judgment and the order denying a new trial.

Appellant chiefly relies upon the insufficiency of the evidence to justify the verdict. Respondent, Wiley E. Douglas, when a boy about 15 years of age, began to live with Dr. Bullis at Allerton, Iowa, doing chores, driving, and doing other work for him, including work on a 40-acre farm near Allerton a part of the time. This arrangement continued during the greater part of the time until March, 1915, when respondent went to Edmunds county, S. D., and took charge of a farm of 160 acres belonging to the doctor. During nearly 6 years of said period, viz., from 1903 to 1909, plaintiff was away from Allerton. Just before respondent went to Edmunds county, he cashed a check given him by the doctor, upon which the doctor had noted, "This settles dealings to date."

A careful consideration of the evidence shows that the services rendered by respondent may be divided into three periods, viz.: (1) From 1889 to 1903; (2) from 1909 to March, 1915; (3) from March, 1915, to March, 1919. There is no satisfactory evidence that respondent rendered service during the lapse between the first and second periods; indeed, the evidence shows that respondent was absent from. Allerton during that time.

As to the services for the first period, the trial court should have instructed the jury that there could be no recovery, because of appellant's plea of the statute of limitations. As to the second period, there is no satisfactory evidence of either the amount or value of the services rendered, and it appears that respondent frequently worked for other people. Except for the alleged declarations of the doctor, hereinafter referred to, there is no evidence that respondent had not been paid for his services. On the contrary, in addition to the indorsement on the check above referred to, the evidence shows that respondent received and cashed checks from the doctor amounting to $95 in 1910, $95.63 in 1911, $211.24 in 1912, $64.80 in 1913, $30 in 1914, and $61.58 up to March, 1915.

In March, 1915, the former family relation changed. Respondent went to Edmunds county and operated the doctor's farm until March, 1919, when the doctor sold the farm,. Respondent was furnished with a traction engine and machinery. There is no evidence to indicate whether respondent was farming for a share of the crop, or was paying cash rent, or what the basis was, except the evidence of Luther Stroub. He testified that in the presence of respondent the doctor made a proposition to Stroub to go to South Dakota and work the farm as a joint venture or partnership, which Stroub declined. He further testified that respondent afterwards told him he was working on about the same basis as they talked over at that time. Respondent as a witness testified in rebuttal, "I never told him [Stroub] that." While in Edmunds county, respondent was engaged in doing general work, plumbing and garage work and farm work, in addition to his work on the farm. He testified that during his four years there he earned at other work than farming the doctor's land about $2,000. The evidence is silent as to who received the proceeds of the crops, as to the amount of the crops, and as to the amount of work done by respondent. The only evidence on which the respondent's claim is based is the so-called declarations or admissions of the doctor. They are as follows:

R. S. Dunham testified:

"I asked him what he paid Wiley up there [in South Dakota] and he said he and Wiley had made no agreement on what he was to pay him, but he was aiming to fix Wiley up some way or other; he might run through with it, and wanted. Wiley to have something for his old days. He told me he did not pay Mr. Douglas wages, but he would get it some way or other. He told me Wiley was a little careless, and he would rather fix it so that he could not run through with it."

And:

"He said he was boarding him, and not paying him wages, but would fix that all up later."

W. A. Douglas, an uncle of respondent, testified:

"He told me something about what he expected to do for Wiley. He told me Wiley had been with him a long time, and he is a good trusty boy, and he expected to do something for him, so he will get a home in his old days. 'I expect to make him a deed to a portion of that land up there.' He did not say definitely how much, but I took it to be a quarter of a section of the land in South Dakota. He said he was going to give that to Wiley for a home in his old days, so that Wiley could not sell it. He would have it fixed so he could not dispose of it, and it would be his home in his old days; never mentioned it more than to state that he had never paid Wiley wages, and that he had been with him a long time." Eric Linden testified:

"He told me Mr. Douglas had worked for him 23 years and has never drawn a cent on his salary. ... He would get it in a bunch when he did get it."

Walter Wittgrave testified that decedent said to him:

"Wiley has worked for me ever since he was 14 years old, and he has never drawn a cent; but I will see it is all right if he died--if I died, I should say."

W. S. Hagen testified:

"He said he had not always...