Eisiminger v. Stanton

• Decision Date: 02 December 1907
• Citation: 107 S.W. 460,129 Mo. App. 403
• Parties: EISIMINGER v. STANTON.
• Court: Missouri Court of Appeals

107 S.W. 460

129 Mo. App. 403

EISIMINGER v. STANTON.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

Rehearing Denied February 17, 1908.

1. WORK AND LABOR — EVIDENCE.

Evidence that the rental value of a farm leased by deceased to plaintiff's husband was more than the rent paid is immaterial in an action for personal services rendered by plaintiff to deceased.

2. SAME — PRESUMPTION.

The jury may find that the presumption that services rendered by plaintiff in taking care of her mother were gratuitous was overcome; plaintiff not having been a member of the mother's family, but having had a family of her own, in which the mother lived, and there being evidence that remuneration was expected and promised.

3. SAME — DEFENSE.

Though plaintiff's husband had leased land from her mother for a consideration, which included the boarding of the lessor and the care of her when sick, and she was in their family, plaintiff can recover for the care of her during such time, under an agreement between her and her mother therefor; such services not being in the line of her duty as a wife, but her separate labor outside thereof, to the proceeds of which she is entitled.

4. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

The assumption by an instruction that services sued for were rendered is harmless, the record conclusively showing that they were rendered.

5. SAME.

The instruction that, if the jury believe from the evidence that plaintiff rendered valuable services to deceased in her lifetime, at her request, which were not paid for, plaintiff may recover therefor, is not prejudicial, because specifying no particular time or kind of services; compensation for services for a certain period and of a certain kind, and no other, being claimed, and all the evidence having reference thereto.

6. TRIAL — OBJECTIONS TO EVIDENCE.

Where plaintiff, in an action on a claim against a decedent's estate, having the duty of showing that the claim was properly presented to the probate court, it being necessary to show its jurisdiction, offered a written waiver by the administrator of service of notice and presentation for allowance of the claim, the objection that it was incompetent, irrelevant, and immaterial was properly overruled, though the paper contained an acknowledgment of the correctness of the claim, which, if pointed out, should have been excluded.

7. APPEAL — AFFIDAVIT — CLAIM AGAINST DECEDENT'S ESTATE.

The affidavit of the administrator for appeal by defendant, in an action on a claim against an intestate's estate, properly states that he was aggrieved by the decision, rather than that the estate was aggrieved thereby; the personal estate descending to the administrator, and under Rev. St. 1899, § 68 [Ann. St. 1906, p. 361], it being his duty to take possession of and administer it, and under section 92 [Ann. St. 1906, p. 367] no suit being maintainable against the estate unless he is made the party defendant.

Appeal from Circuit Court, Andrew County; Hon. A. D. Burnes, Judge.

Action by Ella Eisiminger against William Stanton, administrator of Elizabeth Stanton, deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

James W. Boyd and Willis G. Hine, for appellant. L. W. Booher and Booher & Williams, for respondent.

BROADDUS, P. J.

The cause originated in the probate court of Andrew county, where plaintiff had judgment, from which the administrator appealed to the circuit court, where it was again tried, and plaintiff again obtained judgment, from which defendant appealed to this court.

The proceeding was instituted by the plaintiff by filing an account against the estate of the deceased for services rendered in caring for, nursing, boarding, and washing for Elizabeth Stanton from February 10, 1905, to October 25, 1905, at $3 per day, in the sum of $735, and for boarding, caring for, and cooking for visitors and friends of said Elizabeth Stanton for the same period of time $200. The latter item was abandoned on the trial in the circuit court. The jury rendered a verdict for the plaintiff for the full amount of the first item.

The case is as follows: In the fall of 1901 the deceased, who owned a farm, made her home with the plaintiff, her daughter, and her husband, on the farm of the husband. In February, 1902, she moved back to her own place, at which time she developed symptoms indicating that she had cancer. Her disease grew worse, and on August 3, 1903, she entered into a contract with Nathan Eisiminger, plaintiff's husband, for the purpose of having herself cared for. By the terms of the contract the deceased leased to Nathan Eisiminger her farm for a period of one year beginning March 1, 1904. The consideration for the lease was as follows: The payment of $125 to the deceased to board and care for her in her sickness and do her washing; she to pay her doctor, and bills for medecine. There were other provisions in the lease which have no relation to the matter in controversy. Nathan Eisiminger continued in the possession under his lease for a term of two years ending March 1, 1906, during which time he paid $125 a year. The last year's payment was to the administrator of the deceased. During the trial the defendant offered to show that the rental value of the farm of deceased was $300 per year. The court refused to admit evidence to that effect, on the ground that it was an immaterial matter, and we think properly, as it could not possibly have any bearing on the matter in issue. The evidence showed that Mrs. Stanton was sorely affected with the disease of cancer from February 10, 1905, to October 25th of that year, and that she required much attention and care; and it is for that period of time that plaintiff claims she rendered the services for which she seeks compensation. That she did render constant and necessary service during the time mentioned was fully shown by the evidence; and it was also shown that they were rendered under the most disagreeable circumstances imaginable, which was occasioned by the offensive odor engendered by the loathsome disease of cancer. And it is plainly inferable from the evidence that much of such service was such as could not have been performed by plaintiff's husband, and such under the circumstances as could not have been obtained at the hands of ordinary hired servants. Under such conditions it required the exercise of the greatest affection and a high sense of moral duty even in a daughter to attend or care for an afflicted mother. And it is defendant's theory that, the plaintiff being the daughter, she performed the services in controversy as such, with no understanding and no intention or expectation of being recompensed therefor, and it is the law that if they were so rendered she cannot recover for them against the estate of her mother. The plaintiff does not take issue with defendant on his broad statement of the law, but denies its application to the facts of the case.

The plaintiff introduced her son Laurence as a witness, who testified that he heard...