First Bank & Trust Co. of South Bend v. Tellson

• Decision Date: 01 April 1954
• Docket Number: No. 18474,18474
• Citation: 118 N.E.2d 496,124 Ind.App. 478
• Parties: FIRST BANK & TRUST CO. OF SOUTH BEND v. TELLSON.
• Court: Indiana Appellate Court

Page 496

118 N.E.2d 496

124 Ind.App. 478

FIRST BANK & TRUST CO. OF SOUTH BEND v. TELLSON.

No. 18474.

Appellate Court of Indiana, In Banc.

April 1, 1954.

Lenn J. Oare, Paul R. Moo, South Bend, Seebirt, Oare & Deahl, South Bend, of counsel, for appellant.

Frederick K. Baer, Samuel Schulman, South Bend, F. LeRoy Wiltrout, Elkhart, for appellee.

ACHOR, Judge.

This is an action on a claim filed by the appellee against the estate of Betty S. Spiro, deceased, for miscellaneous services rendered from August 1, 1941, to the date of decedent's death on August 10, 1950.

The issues were formed on appellee's amended claim, which simply alleged that the decedent and her estate were indebted to appellee in the sum of $40,000 for services rendered to the decedent at her specific instance and request from August 1 1941, to the date of her death on August 10, 1950. A bill of particulars enumerating said services was attached, filed with, and made a part of the claim. In special findings of fact and conclusions of law made by the court at the conclusion of the trial, the court found that appellee devoted 7,200 hours to services for the decedent and that such services were of the reasonable hourly value of $2.50. Pursuant to said findings and conclusions, the court thereafter entered a judgment for the appellee against the appellant in the amount of $18,000.

Errors assigned and relied upon by appellant as cause for reversal were (1) the overruling of appellant's motion to require appellee to make his bill of particulars more specific; (2) the overruling of appellant's motion for new trial, which motion asserted the following grounds:

(a) The court erred in the assessment of the amount of recovery, in this, that the amount was too large.

(b) The decision of the court was not sustained by sufficient evidence and was contrary to law.

(c) The admission of certain evidence over objection, and the exclusion from the evidence of certain oral and written statements made by decedent, and the exclusion of decedent's last will and testament, together with certain codicils thereto, and the certificates of probate thereof.

Appellant's first contention is without merit. The law is well settled that the ruling to make a motion more specific a almost wholly within the discretion of the court. 1 Gavit's Indiana Pleading and Practice, § 115, pp. 601-604; § 116, pp. 605-606; Flanagan's Indiana Pleading and Procedure, § 132, Ch. 31, pp. 185, 186.

Furthermore, as stated in 1 Henry's Probate Law and Practice, § 300, p. 372:

'A formal complaint is not required of a claim against an estate, but there must be such a statement of fact as will show a legal liability on the part of the estate to the claimant, and indicate to the estate's representative what he is called upon to meet, with reasonable certainty; and the statement must contain all the facts necessary to show, prima facie, that the estate is lawfully indebted to the claimant. All that is necessary by way of a complaint is a statement containing sufficient substance to apprise the administrator of executor of the nature of the demand, and such a statement that a judgment based thereon may be used to bar another suit for the same claim. * * *'

Appellant contends secondly that the court erred in the assessment of the amount of recovery ($18,000) in that the amount was too large. Particularly, appellant contends that the evidence does not support either the finding that the appellee had devoted 7,200 hours to the performance of services for appellee, or that the value of such services was $2.50 per hour.

The testimony regarding the nature and hourly value of the services performed by appellee is subject to the same indefiniteness as was the testimony regarding the number of hours of services performed. The nature of the services performed by appellee is indicated by the following facts in evidence: The services varied from a mere passing of personal pleasantries to the hiring of nurses and chauffeurs, settling family differences, calling doctors when needed, etc., to caring for the business and property of decedent. One witness testified regarding these services as follows: 'I always thought Albert Tellson was her legal adviser, as far as I could see. Every time she wanted to talk over business she would always have me call Mr. Tellson to come up and talk to her. She said, 'Go call Albert: I want to talk to him about my business.'' Another witness testified, 'Mrs. Spiro wouldn't trust others with bills and receipts and things, business papers. Mr. Tellson was the only person that she would trust with that sort of document outside of her attorney.'

The evidence disclosed further that decedent was a very demanding person; that she had very few close relatives or friends that she was approximately 79 years of age at the time of her death; that her weight was around 275 pounds; that during her lifetime she suffered from dropsy and had difficulty getting around; that she had holdings valued at approximately $850,000; that she owned a number of rental properties, including several filling stations and some store buildings all in South Bend, and a number of securities, from which she had a substantial income; that Mr. Tellson was her confidant and that she, at times, entrusted him with large sums of cash,--at one time in excess of $50,000; that he was the person to whom she entrusted taking care of her own burial arrangements and the burial arrangements of her brother. Evidence in regard to the value of his services varied from 75 cents to $1 on one extreme, to $4 an hour on the other.

With regard to the number of hours of services performed, several of the witnesses testified substantially as follows: 'During the period that I was in Mrs. Spiro's employ, Albert put in an average of about 15 or 18 hours a week that I know of. Some days he was there maybe a couple of hours, another day a half hour, maybe another day an hour, maybe another day ten minutes. Sometimes he would be there in the evening and on Sundays. My estimate is conservative and I am not taking into account times that he might be with her that I wouldn't know about.' It is a fact that, although there were a large number of witnesses who testified as to the nature of appellee's services, their testimony in each case was limited to a relatively short period of their respective employment. As a result thereof, there was no direct testimony as to the continuous nature of appellee's employment during all of the nine-year period, upon which appellee's claim is predicated. There being evidence that the services performed by appellee were continuous during the nine-year period, and there being no evidence to the contrary, it was inferred that the hours and nature of service continued substantially the same during said period.

Appellant complains that the facts, as found by the court with regard to both the number of hours of services performed by appellee and the value of such services, are not sustained by positive testimony which coincides directly with the facts found, and, therefore, contends that the findings and judgment are not supported by the evidence. Upon this issue, appellant relies upon the case of Pearl Creamery Co. of Nappanee v. Montpelier Creamery Co., 1951, Ind.App., 101 N.E.2d 709. However, in that case, upon the facts stipulated, plaintiff, if entitled to recover at all, was entitled to recover a fixed sum. Under such circumstances, the amount of recovery was a question of law for the court and not, as here, a question of fact. The rule is well established in this state that, where the reasonable amount of recovery is in dispute under the evidence the amount awarded cannot be considered excessive if it is within the scope of the evidence before the court. Our courts have treated this issue as follows: 'The amount of the recovery assessed is below the amount shown by a part of the evidence, therefore the amount of the recovery cannot by this court be held to be too large.' Western Union Telegraph Co. v. Mart, 1939, 106 Ind.App. 590, 595, 17 N.E.2d 500, 503; Shover, Administrator, v. Myrick, 1892, 4 Ind.App. 7, 10, 30 N.E. 207; Durham v. Hall, 1879, 67 Ind. 123, 131. Substantially the same question regarding proof of the exact number of days and hours during which services were performed was raised in the case of Hull v. Burress, 1950, 120 Ind.App. 507, 515, 93 N.E.2d 213, 217. In that case this court stated:

'The appellant, however, insists there is a failure of proof in that appellee has failed to produce direct evidence of the performance of the services for the exact days and hours set forth in the claim, and that such burden was upon appellee.

'Under our statute the claimant's lips were sealed, and for many of the hours only claimant or decedent would have direct knowledge of the performance of such services. But the testimony of witnesses that the claimant was the decedent's private nurse, and that they saw claimant and decedent two or three times a day would justify a reasonable inference that the services were continuous for the hours as alleged in the claim.

'The exactitude insisted upon by counsel for appellant would amount to rules of proof of absolute technical perfection, and above and beyond any reasonable standards of proof requirements, and such requirements would be wholly impracticable of application to the degree insisted upon in determining facts affecting human obligations in courts of justice.'

Appellant contends further that the judgment is not sustained by sufficient evidence and is contrary to law because of the lack of evidence that claimant had any contract, agreement or understanding with decedent for payment for the alleged services. As contended by appellant, the law is well settled that a judgment in favor of the claimant must rest upon contract, express or implied, and not upon any presumed moral, ethical or equitable basis. 34 C.J.S., Executors and Administrators, §...