Embry v. Martz' Estate

• Decision Date: 13 April 1964
• Docket Number: No. 50084,No. 1,50084,1
• Citation: 377 S.W.2d 367
• Parties: Annie Alice EMBRY, Plaintiff-Appellant, v. ESTATE of Charles W. MARTZ, Herbert A. Mouse, Administrator, Defendant-Respondent
• Court: Missouri Supreme Court

Page 367

377 S.W.2d 367

Annie Alice EMBRY, Plaintiff-Appellant, v. ESTATE of Charles W. MARTZ, Herbert A. Mouse, Administrator Defendant-Respondent.

No. 50084.

Supreme Court of Missouri, Division No. 1.

April 13, 1964.

Robert G. Oberlander, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, and George T. Sweitzer, Jr., Harrisonville, for appellant.

Belisle & McNabb, H. H. McNabb, Jr., Butler, Poague, Brock & Wall, Barkley M. Brock, Clinton, for respondent.

HYDE, Presiding Judge.

Plaintiff's claim for services was filed in the Probate Court of Bates County but transferred to the Circuit Court as authorized by Section 473.420, subd. 2. (Statutory references are to RSMo and V.A.M.S.) After verdict and judgment for plaintiff for $25,000.00, the court granted a new trial on defendant's motion and plaintiff has appealed.

The court's order stated that it sustained the motion 'for error committed by Court in admitting in evidence over objection of defendant deposition of Mervin Embry, spouse of claimant, and in reading to jury Instruction No. 1 offered by Claimant.'

The case was submitted on the following verdict-directing instructions given at the request of each party.

Instruction No. 1: 'The Court instructs the jury under the law of Missouri, that, absent a family relationship, where one performs valuable services for another, the benefit of which has been received and enjoyed by him, the law presumes an intention on the part of the former to charge and the latter to pay the reasonable value thereof and implies a promise on the part of the one receiving the services to pay a reasonable value for said services.

'Therefore the Court instructs the jury if you find and believe from the credible evidence that Annie Alice Embry from 1946 to the death of Charles Martz, in February, 1962, rendered to Charles Martz, now deceased, services in cleaning his house, in helping to maintain his house, in washing and ironing his clothes, in mending his clothes, in laundering his bed linens, in cooking and serving his meals, in attending his needs when sick, in helping him in his bookkeeping, in taking him to the doctor, in helping him in his correspondence, in procuring groceries and household supplies, and in assisting in selecting his clothing, if so, and if you further find that at the time such services, if so, were performed that Charles Martz accepted the benefits of said services, if he did, then your verdict will be for Annie Alice Embry in such sum as you believe from the evidence such services are reasonably worth, not to exceed $25,000.00.'

Instruction No. 3: 'You are instructed that where services are rendered and received, a contract of hiring, or obligation to pay, will be presumed; but a presumption may arise from the relationship of the parties that the services rendered are acts of gratuitous kindness, and in this case it is a question for you, taking into consideration all the circumstances, including the nature of the relationship of the parties, to determine whether there was any implied or express contract for compensation or not.

'Now, unless you find from the evidence in this case that plaintiff rendered services to Charles W. Martz, and that at the time such services were rendered Annie Alice Embry intended to make a charge therefor and to receive compensation from the said Charles W. Martz over and above any benefits she may have received, if any you so find, from the said Charles W. Martz, then you will find the issues herein for the defendant, and this is true even though plaintiff may have though that deceased would bestow on her or some member of her family a gift of a portion of his property by way of his Will or otherwise.'

Defendant's claim of error in Instruction 1, on which he seeks to support the court's order, is that it assumes there was no family relation between plaintiff and Charles Martz, deceased. Defendant's position is that, to authorize a verdict for plaintiff, it was essential 'to either require the jury to find that there was an express promise to pay or the jury had to find there was no family relationship.' We note that the instructions offered by each party state an obligation to pay for the services rendered and received unless there was a family relationship or some other relationship indicating gratuitous services (no specific relationship is submitted by Instruction No. 3 and only family relationship is argued in defendant's brief) so both adopted the same theory as to obligation to pay if there was no family relationship. (For other forms of such instructions see 4 Raymond Missouri Instructions 263-265.) Plaintiff says there was no substantial evidence from which the jury could find a family relationship, within the legal definition of that term, so that there was no error in assuming it. We said in Steva v. Steva, Mo.Sup., 332 S.W.2d 924, 926: 'The term 'family,' within the rule under discussion, 'has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other''; and that '[a] relationship of sisters-in-law, in and of itself, does not give rise to a presumption that services are rendered gratuitously.' In this case, the parties were not related by blood, marriage or adoption, legal or equitable.

The relevant facts are that Martz employed plaintiff's husband as a farm hand in 1940 at $30.00 per month and a gallon of milk a day, furnishing them a tenant house on his farm. Plaintiff and her husband and child moved into the tenant house and another child was born to them there. In 1943, plaintiff's husband's monthly pay was raised to $45.00 per month. In 1947, Martz entered into a partnership agreement with plaintiff's husband for the operation of his 350-acre farm, including joint ownership of livestock and other property. Just before this, in 1946, Mrs. Martz, then about 60, had a stroke and plaintiff commenced cooking for her, doing laundry, looking after her chickens and getting groceries. Mrs. Martz had another stroke in 1949 and died in 1950. After her funeral, Martz came to plaintiff and her husband and asked them to move into his house, 'stay with me and take care of things * * * take care of the house and everything,' saying: 'If you will do that, I will see that you are paid and paid well for it.' After talking it over, they did move into Martz's house and plaintiff 'did all of his housework, cooked his meals, washed his clothes, laundry, just everything housekeepers do'; also including shopping, bookkeeping, letter writing, reading, painting and paperhanging. Martz had his own room and plaintiff, her husband and children had their own rooms. Martz paid for electricity but rented the tenant house furnished with the furniture owned by plaintiff and her husband.

In 1952, Martz remarried and plaintiff and her husband and children moved back to the tenant house but plaintiff did laundry and heavier housework for Martz during that time. However, this marriage ended in a divorce after ten months and according to his statements to plaintiff and her husband cost him $10,000.00. Martz asked them to move back to his house and help him again, saying: 'I've got myself in an awful mess * * * if you'll come back, I'll see you're paid for it.' Several weeks later, they decided to try it again and stayed until Martz died in February 1962. Plaintiff did the same housework as before but Martz required more care after 1955 because of illness, having a prostate operation and in 1957 a heart attack. Plaintiff's husband said they treated Martz 'like one of the family.' They called him 'uncle', or 'unc', as did others in the neighborhood, and exchanged gifts on birthdays and holidays but Martz always spent Christmas with relatives at Carthage. There was testimony that Martz said at Carthage in 1957 that he had a will and wanted to be sure that plaintiff and her husband were provided for. He bought gifts, clothing and other things at times for plaintiff, her husband and children; sometimes he gave the children small amounts of money to spend and the children did things for Martz. He permitted all of them to use his automobiles and he used theirs. The farm partnership was terminated in 1955 and thereafter plaintiff's husband rented the whole farm, paying $435.00 annually for the pasture land of about 150 acres and the buildings...