Franklin v. Northup

• Citation: 215 P. 494,107 Or. 537
• Parties: FRANKLIN v. NORTHUP.
• Decision Date: 22 May 1923
• Court: Supreme Court of Oregon

215 P. 494

107 Or. 537

FRANKLIN v. NORTHUP.

Supreme Court of Oregon

May 22, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Action by Katherine E. Franklin against H. H. Northup, administrator of the estate of Louise Humphrey-Smith, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.

Henry S. Gray and John F. Logan, both of Portland (Clarence H. Gilbert and John A. Laing, both of Portland, on the brief), for appellant.

Glenn E. Husted, of Portland (Wilson T. Hume, of Portland, on the brief), for respondent.

McCOURT J.

Defendant is administrator of the estate of Louise Humphrey-Smith deceased. Plaintiff presented a verified claim against the estate as follows:

For personal services performed for deceased between June 15, 1913, and February 5, 1920, alleged to consist of housework, care, nursing, attention and companionship, 59 months at $150 a month ..... $ 8,850 And 12 months at $200 a month ........................................... 2,400 For moneys expended for support of deceased during the same period ...... 1,600 _______ Total ............................................................. $12,850

The administrator disallowed and rejected plaintiff's claim, whereupon she commenced this action to establish the same.

Defendant, in his answer, admitted that plaintiff rendered some services to the decedent of the character stated in plaintiff's claim and alleged in her complaint, but denied that plaintiff was entitled to compensation therefor. Defendant also denied the expenditure by plaintiff of any sums of money for the support of the decedent, except certain sums which defendant alleged had been wholly repaid to plaintiff.

As an affirmative defense, defendant alleged facts from which he deduced the conclusion that the deceased, Louise Humphrey-Smith, and plaintiff, during all the times mentioned in plaintiff's complaint, and for some years prior thereto, virtually stood in the relationship of parent and child; defendant further alleged that the services rendered by plaintiff and the money, if any, expended by her in behalf of the decedent, was performed and expended in discharge of an obligation on the part of plaintiff to take care of, support, and administer to the wants and needs of deceased, and to her comfort, in return for financial assistance and support and for maintenance, loving care, and affection which it was alleged deceased had theretofore spent and lavished upon plaintiff.

For a second affirmative defense defendant alleged that about January, 1919, in recognition of the care and devotion of plaintiff toward herself, and with the purpose and intention of compensating plaintiff for all support and care and attention rendered and to be rendered by plaintiff to herself the decedent conveyed to plaintiff an unincumbered piece of real property, of the value of $2,000, which was received and accepted by plaintiff.

Plaintiff, in her reply, denied that the relationship between herself and decedent was such as to repel the implication of a promise to pay for the services rendered by her to the decedent, admitted the conveyance to her by decedent of real property of the value of $2,000, but alleged affirmatively that such conveyance was intended by decedent as a gift to plaintiff.

A trial was had before the court without a jury. The court made findings in conformity to the controverted material averments of plaintiff's complaint. It was declared in the findings so made that plaintiff was entitled to compensation for 64 months, the first 52 months thereof at the rate of $115 per month, or $5,980, and the last 12 months of the period at the rate of $125 per month, or $1,500. The court also found that plaintiff expended for the support of the decedent the sum of $800, for which she was entitled to recover. Based upon those findings, judgment was given plaintiff for the sum of $8,280. Defendant prosecutes this appeal from that judgment.

At the close of plaintiff's testimony, defendant interposed a motion for nonsuit, on the ground, among others, that the evidence submitted by plaintiff was insufficient to establish the claim of plaintiff upon either of her causes of action.

Defendant excepted to the several findings of fact made by the court, and submitted special findings upon the material issues presented by his answer and plaintiff's reply. The court denied and overruled defendant's several motions and exceptions, and refused to make the findings which defendant requested. Defendant assigns error upon the adverse rulings mentioned.

The questions thus presented call for an examination of the evidence, a transcript of which is attached to, and made a part of, the bill of exceptions.

Plaintiff's mother died when plaintiff was an infant. Louise Humphrey-Smith, defendant's intestate, was a talented, kind, and generous woman. Her husband died about the time of the death of plaintiff's mother. Mrs. Smith thereupon took a deep interest in plaintiff. During her childhood plaintiff frequently visited at the home of the deceased, and also lived with decedent for some time, and during all of plaintiff's girlhood and younger womanhood plaintiff received from deceased the care, affection, counsel, and protective guidance that a natural daughter usually receives from a mother. Plaintiff finished her education in Germany, to the expense of which the deceased contributed substantial sums of money. The solicitude of decedent for the welfare of plaintiff and the natural gratitude of plaintiff arising therefrom created a strong mutual attachment and affection between them, which apparently continued until shortly before the death of Louise Humphrey-Smith, when she became mentally incompetent, as the result of progressive malignant physical affliction.

Prior to the 15th day of June, 1913, plaintiff was residing in the city of Portland, Or., and defendant's intestate, Louise Humphrey-Smith, was, and for several years had been, residing at Berkeley, Cal. The deceased was then about 70 years of age, and was in failing health. The condition of decedent's health was explained to plaintiff by mutual friends, and thereafter by correspondence between the plaintiff and decedent it was mutually agreed that plaintiff would secure an apartment in Portland, Or., and that plaintiff and decedent would thereafter live together and share the rental of the apartment and all other living expenses equally. In pursuance of that agreement, and in anticipation of the coming to Portland of the deceased, plaintiff secured an apartment in the Kingsbury Apartments in the city of Portland, and on or about the 15th day of June, 1913, deceased came to Portland and took up her residence with plaintiff in the apartment mentioned, where plaintiff and deceased lived together until the death of Louise Humphrey-Smith on February 5, 1920. Plaintiff introduced the deceased to strangers as her aunt, and habitually addressed her as "Tante," meaning "Aunt" in the German language.

During all the times plaintiff and deceased lived together plaintiff was employed as a teacher in the public schools of Portland, and devoted to that vocation the amount of time usually employed by teachers therein, receiving as compensation therefor from $100 to $150 per month.

Shortly after decedent arrived in Portland and took up her residence with plaintiff she was attacked by a serious illness, which confined her to her bed for several weeks. Plaintiff waited upon and nursed the decedent in that illness, and in August went to the beach for two weeks. In September the decedent went to a sanitarium for a month. When she returned from the sanitarium, a housekeeper was employed from thence on until about July 1, 1915. During the period following the illness mentioned the health of the deceased was improved, and she was up and about, went down town, and visited neighbors occasionally. Plaintiff, during all of this period, except the summer vacations, left the apartment about 8 o'clock in the morning and returned between 3:30 and 4 o'clock in the afternoon. While at the apartment, she endeavored to administer to and promote the comfort of the deceased so far as was practicable. When the housekeeper was dismissed in July, 1915, plaintiff, in addition to looking after the comfort of the decedent, did the necessary housework in and about the apartment.

The decedent attended the Exposition in San Francisco, and visited friends there, between November 1, 1915, and July 1, 1916. Plaintiff had previously spent a month in visiting the Exposition. About the latter date decedent returned to Portland, and again took up her residence with plaintiff. In the meantime her health had become further impaired, and shortly after her return she suffered from a severe illness that lasted several weeks. This was followed by intermittent spells of serious illness, which produced a rapidly progressive decline in her general physical condition, and rendered her nervous and irritable, and also had the effect of reducing her mental powers, finally destroying the same.

After she returned from San Francisco, decedent required considerable more attention than had been necessary during the first two years of her residence with plaintiff. Her attacks of illness generally came on at night in the form of convulsions, which disturbed the rest of plaintiff and taxed her strength in waiting upon decedent. On some of these occasions a trained nurse was employed for a few weeks at a time, but in the intervals the attention which the ill health of the deceased required was given by plaintiff.

All of the nurses and housekeepers mentioned were paid by the decedent, and several witnesses testified to statements made...