Elstroth v. Karrenbrock

• Decision Date: 01 June 1926
• Docket Number: No. 19363.,19363.
• Parties: ELSTROTH v. KARRENBROCK.
• Court: Missouri Court of Appeals

285 S.W. 525

ELSTROTH v. KARRENBROCK.

No. 19363.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 25, 1926.

Error to Circuit Court, St. Charles County ; E. B. Woolfolk, Judge.

"Not to be officially published."

Claim of Lucy Elstroth for personal services rendered against Fred Karrenbrock, as executor of the estate of Henry Elstroth, Sr. Judgment for claimant, and defendant brings error. Affirmed.

D. E. Killam, of Troy, William F. Bloebaum, of St. Charles, and Emil P. Rosenberger, of St. Louis, for plaintiff in error.

B. H. Dyer, of St. Charles, and Howell & Jackson, of Troy, for defendant in error.

BENNICK, C.

On October 22, 1923, defendant in error filed her claim in the probate court of Lincoln county, Mo., against the estate of Henry Elstroth, Sr., to recover the sum of $3,777, in which amount she alleged the said estate was indebted to her for board, lodging, labor, nursing, services, care, and attention furnished and rendered to the said Henry Elstroth, Sr., continuously from November, 1904, to October 6, 1922, at his instance and request, and for which he promised to pay, and for which she expected to be paid. The verdict of the jury in the probate court was in favor of defendant in error in the full sum sued for. The executor of the estate prosecuted his appeal to the circuit court of Lincoln county and, upon his application, the case was transferred on change of venue to the circuit court of St. Charles county, wherein upon a trial of the issues the verdict of the jury was for defendant in error in the sum of $2,000 and judgment rendered thereon, from which the executor has brought the case to this court on writ of error.

In November, 1904, defendant in error married Henry Elstroth, Jr., a son of Henry Elstroth, Sr., whose wife died during the same year. The father resided on his farm of 322 acres until the death of his wife and paid his son wages until the time of the son's marriage. After the death of his wife, the father entered into an agreement with his son, by the terms of which the son was to occupy the premises, in return for which he was to give his father one-third of the crops and, in addition, was to keep up the repairs on the premises. At the same time the son purchased from his father all the personal property on "the farm, such as horses, mules, cattle, and farm machinery.

At the time the agreement for renting the farm was made, the father stated to his son and wife that he did not want to work and proposed that he remain in the house and board with them. Upon inquiring from Mrs. Elstroth whether this would be possible, she gave her consent, and the father informed her that he Would pay the board to her. Upon a number of occasions the father informed Mrs. Elstroth that he was going to pay for his board and for all the trouble he caused her.

The father was 71 years of age when he began living with his son and daughter-in-law, and resided with them continuously, save for the space of one week, until October 6, 1922, when he died at the age of 89 years. During this entire period of time Mrs. Elstroth furnished him board, did his washing and ironing, cleaned his room, cleaned the bedclothes, patched his clothes, cooked the meals, and cared for the father generally. No supplies for the household were furnished by the father. The meat came from animals raised on the farm, and the vegetables were raised in the garden, which was tended by Mrs. Elstroth. She also raised the poultry and furnished the eggs that were used, taking the surplus eggs to the market and exchanging them for groceries and other household supplies. The father usually slept late each morning, and as a result Mrs. Elstroth was forced to prepare an extra breakfast for him. For a period of time he suffered from a cancer on the mouth, which she treated and, in addition, because of this ailment, she was forced to furnish him separate towels, dishes, and other supplies. No book account was kept either by Mrs. Elstroth or by the father.

The father seems to have enjoyed good health for a man of his age, although he suffered from stomach and bladder trouble in addition to the trouble with the cancer spoken of, and finally died of locked bowels. He did such odd jobs of work as pleased him, burning a few stumps, cutting a few sprouts, carrying in kindling, and the like, for none of which he received pay. All the bedclothing used by the father was furnished by Mrs. Elstroth, except what he had when he first began to board with her. The furniture which the father owned remained in the house, although Mrs. Elstroth and her husband had their own furniture in addition.

Mr. and Mrs. Elstroth, who had no children of their own, adopted an orphan child named Emma in 1906. A niece of Mr. Elstroth's, named Norah Frank, was cared for by them for a period of 9 years. About 1906, they also undertook the care of a boy named George Stillman, who remained with them until he was 18 years of age. These children were sent to school, but before and after school hours performed such duties as Mrs. Elstroth assigned to them, and occasionally swept the father's room or assisted in the preparation of the meals.

George Stillman, called as a witness for Mrs. Elstroth, testified that upon two occasions he had heard the father say to Mrs. Elstroth that they would be paid for their trouble, to which Mrs. Elstroth responded: "That was all right." The first of these occasions was in 1909 or 1910, when the father was sick and Mrs. Elstroth was giving him his medicine. The second occasion was about 1912 or 1913, when the father had injured his ankle and was wearing a plaster cast.

Dr. W. A. Whitt testified that he was called to attend the father at the time his leg was injured, and that he heard the father tell Mrs. Elstroth "that he hated to be of so much trouble, but she would be well repaid for her trouble."

Dr. F. L. Finley was called in attendance on October 3, 4, and 5, 1922, when the father was suffering from locked bowels. Mrs. Elstroth was caring for him at this time, and the father spoke to her in the presence of Dr. Finley, saying:

"It looks like I am a heap of trouble; I have got a plenty and I will see that you are well paid."

In 1915 the son borrowed $2,000 from his father, and jointly with Mrs. Elstroth executed a promissory note therefor, paying interest thereon until September, 1921. This note Was unpaid at the time of the father's death. There was evidence that after the son took over possession of the farm he put improvements on it, such as houses, barns, silos, graneries, machine shops, etc., costing approximately $6,600. The inventory disclosed that the total valuation of decedent's real and personal estate was $53,159.08.

Both at the close of plaintiff's case and at the close of the whole case plaintiff in error requested instructions in the nature of demurrers to the evidence, as well as specific withdrawal instructions, directed to the items in Mrs. Elstroth's claim for labor and services and for board and lodging; and, in addition, an instruction was asked in each instance to the effect that Mrs. Elstroth was entitled to recover only for such services to decedent in the way of nursing him and waiting on him in his last sickness as were rendered after he reached such stage that he was no longer able to work about the farm or house or take care of himself. Inasmuch, however, as plaintiff in error did not stand on his demurrer to the evidence offered at the close of plaintiff's case, but put in his own evidence, the correctness of the court's ruling on the last demurrer and upon the last request for withdrawal instructions is the only matter to be reviewed.

We recognize the rule that services rendered by one member of a family to another, or for the common purpose of the family itself, are presumed to have been rendered gratuitously. Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74; Cowell v. Roberts' Ex'r, 79 Mo. 218; Wood v. Lewis' Estate, 183 Mo. App. 553, 167 S. W. 666; Bowman v. Shelton, 175 Mo. App. 696, 158 S. W. 404; Hyde v. Honiter, 175 Mo. App. 583, 158 S. W. 83; Baker v. Lyell, 210 Mo. App. 230, 242 S. W. 703; Kingston v. Roberts, 175 Mo. App. 69, 157 S. W. 1042; Weaver v. Wilson (Mo. App.) 206 S. W. 916; Crowley v. Dagley, 174 Mo. App. 561, 161 S. W. 366; Shern v. Sims (Mo. App.) 258 S. W. 1029. However, while the law will not imply a contract to pay for services rendered by one member of a family for another from the mere fact that the services were rendered and accepted, yet a promise to pay may be inferred from facts and circumstances reasonably justifying the inference of an actual agreement or understanding to pay for the services, but in the absence "of direct proof of such agreement it must appear that the party rendering the services intended at the time that she should be compensated and that the party receiving the benefit thereof intended that compensation should be made. Brown v. Holman, 292 Mo. 641, 238 S. W. 1065; Lillard v. Wilson, supra; Bunton v. Newell (Mo. App.) 239 S. W. 1096; Brunnert v. Boeckmann's Estate (Mo. App.) 258 S. W. 768; Smith v. Sims (Mo. App.) 258 S. W. 1032; Brinton v. Thomas, 138 Mo. App. 64, 119 S. W. 1016; Stice v. Sims (Mo. App.) 257 S. W. 818; Miller v. Smith (Mo. App.) 275 S. W. 769; Wood v. Lewis' Estate, Shern v. Sims, and Baker v. Lyell, supra. We are mindful, too, that, in passing upon the demurrer to the evidence in an action for services rendered by a claimant to decedent, not only must the claimant receive the benefit of all direct substantial testimony in her favor, but every...