Emmerson v. Botkin
| Decision Date | 10 May 1910 |
| Citation | 109 P. 531,26 Okla. 218,1910 OK 129 |
| Parties | EMMERSON v. BOTKIN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A general demurrer to a petition, which attempts to state several causes of action, should be overruled if any of the statements of causes of action contained in said petition are good.
In a case where a pleading is challenged before trial by demurrer its language, where doubtful, will be construed against the pleader upon the ground that, as he selects the language, he should make his meaning clear, and where in such a case a demurrer is sustained on account of the insufficiency of a pleading, and no application for amendment is made, it will be presumed that the facts to justify it do not exist.
Essential facts necessary to be shown in order to entitle a party to the relief demanded and to which he supposes himself entitled should be stated in the pleadings by allegation or averment and not by way of recital.
An express contract for services to be rendered by a woman for a man as housekeeper and servant is valid and enforceable although the parties entering into it live together in a state of concubinage during the time the services are being rendered, unless the contract was made in contemplation of such illicit relationship; and in a case where the claim for compensation is based on a contract and grows out of the lawful services actually rendered, and no part of the same has reference to the meretricious relationship existing between the parties, the same is enforceable.
(Additional Syllabus by Editor Staff.)
While under Comp. Laws 1909, § 5655, providing that, in the construction of a pleading, its allegations should be liberally construed with a view of substantial justice between the parties, the actual allegations must be so construed that substantial justice may be done between the parties, it is not required that the essential averments lacking in the pleading shall be construed into it, or that a necessary averment be supplied on inferences drawn from other facts alleged, unless such averments must logically and necessarily be so inferred therefrom.
Error from District Court, Lincoln County; W. N. Maben, Judge.
Action by Mary A. Botkin against H. S. Emmerson, administrator of Joseph D. Morris. Judgment for plaintiff, and defendant brings error. Affirmed.
M. D. Owen and G. A. Neeley, for plaintiff in error.
Hoffman & Robertson, for defendant in error.
This case presents error from the district court of Lincoln county. Defendant in error, who will hereafter be denominated "plaintiff," filed her action against H. S. Emmerson, as administrator of the estate of Joseph D. Morris, deceased, to recover on two causes of action, in the first of which she alleges that Joseph D. Morris deceased, during his lifetime, was indebted to her for personal services as housekeeper and servant beginning November 1, 1887, and terminating on his death, March 6, 1906; that said services consisted of general housework, farmwork, nursing, and caring for him during his various sicknesses, and were reasonably worth the sum of $3 per week, or $2,859. The petition then recites the death of said Morris, the appointment of Emmerson as administrator, the submission to and the allowance by him of plaintiff's claim in the sum of $1,400, and the rejection of said claim by the probate court. The second cause of action relates to certain services which plaintiff alleges she performed in caring for and protecting the estate of decedent, for which she prays a judgment of $100. To this petition defendant filed a general demurrer, which was by the court overruled, to which exception was saved. Counsel insist that this demurrer should have been sustained at least to the second cause of action. The rule in reference to demurrers of this character, where there is more than one count in a petition, is stated in the case of Hanekratt v. Hamil, 10 Okl. 219, 61 P. 1050, wherein the Supreme Court of the territory held: "A general demurrer to the whole of a petition, which contains several statements of causes of action, should be overruled if any of the statements of causes of action contained in said petition are good."
Counsel does not contend that the first cause of action is not well stated; hence no error was committed by the court in overruling the demurrer. To this petition defendant then filed answer: First, a general denial, and, second, a plea of the statute of limitations; and in a supplemental answer stated, in substance: (2) That Mary A. Botkin, plaintiff below, formerly resided on a farm in the state of Iowa, and in a residence near the place and upon the same farm where Joseph D. Morris and his wife and family resided. That the two residences were only a short distance apart, and that the plaintiff and decedent, Morris, became intimate with each other and for several years sustained criminal relations, each with the other, at that place. (3) That the friendly and criminal relations of the plaintiff and the deceased became so notorious as to impel Morris and his wife to separate; Morris' wife going to Illinois, where she resided upon property owned by Morris until the time of her death shortly thereafter. That the notorious relations between the plaintiff and the deceased occasioned a separation of Mrs. Botkin and her husband, whose whereabouts is unknown. (4) That Morris disposed of his farm in Iowa, and together with the plaintiff and her two children removed to Oklahoma and purchased a farm near the town of Sparks in Lincoln county, which is now a part of the estate of the deceased of which plaintiff in error is administrator; and that afterwards the deceased purchased a residence in the town of Sparks, in said county and state, and that from the time of the removal of the plaintiff and the deceased from the state of Iowa, until the recent death of said Morris, said plaintiff and deceased lived and cohabited together unlawfully and in contravention of the laws of the land and the statute in such cases made and provided. That no children were begotten and born of this immoral relation. (5) The administrator alleges a setoff against the plaintiff by claiming that Joseph D. Morris maintained and supported her for a period of 18 years and did pay for and provide the sustenance and education of her two children for a period of 18 years, and during all the said time the said Joseph D. Morris, prior to the commencement of the aforesaid action, did provide for said Mary A. Botkin and her two children all the necessaries of food and clothing and comforts of life consistent with said Morris' means and station in life in the amount of, to wit, $300 per annum, during said 18 years, aggregating in all $5,400. (6) That plaintiff and deceased continued to reside together and cohabit unlawfully until the death of the said Joseph D. Morris on the 6th day of March, 1906, at which time he died in his residence in Sparks. (7) That any contract or agreement made between the plaintiff and the said Joseph D. Morris, wherein and whereby he was to pay her, or expend on her account, any money, funds, or emoluments, whatsoever, in consideration of the immoral relation set forth in her petition, is invalid and void as contrary to law and against public policy.
To the supplemental answer thus filed, the plaintiff filed a demurrer, which was by the court sustained, except to that portion contained in paragraph 5, relating to the alleged indebtedness of plaintiff for the care, education, and the maintenance of herself and children. To this ruling defendant excepted. A reply was then filed, whereupon defendant filed an affidavit for a continuance which was by the court denied and to which exception was saved. Trial was then had to a jury, which resulted in a verdict for the plaintiff in the amount of $1,400, and the case has been brought to this court for review.
The principal assignment relied on in this court is that the trial court erred in sustaining the plaintiff's demurrer to paragraphs 2, 3, 4, and 6 of the supplemental answer. It will be noted that plaintiff's first cause of action avers that Morris was indebted to her for services as housekeeper and servant, extending over the period named, and that the specific services rendered were general housework farmwork, and nursing and caring for the defendant during his various illnesses. The general denial filed by the defendant necessarily put in issue all of the material allegations of the petition essential for plaintiff to establish in order that she might recover. Considering this denial in conjunction with the statements contained in the answer which were stricken out, defendant probably intended to plead that the relationship existing between plaintiff and the deceased was not that of master and servant, but was an immoral relationship, and that the contract which it is alleged was entered into was for this purpose, and not for the lawful one pleaded. Counsel for defendant in his brief argues the case on the assumption that this is the effect of that portion of the supplemental answer which was stricken out. Our statute provides (section 5655, Comp. Laws Okl. 1909) that, "in the construction of any pleading for the purpose of determining its effect, its allegations should be liberally construed with a view of substantial justice between the parties." While under this the actual allegations and averments of all pleadings must be so construed that substantial justice may be done between the parties, yet this cannot be held to require that essential averments lacking in a pleading shall be construed into it, or that a necessary averment be supplied on inferences drawn from other facts alleged, unless such averment must logically and necessarily be so inferred...
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