Garner v. McKay

• Decision Date: 30 March 1929
• Docket Number: No. 4486.,4486.
• Parties: GARNER v. McKAY.
• Court: Missouri Court of Appeals

15 S.W.2d 908

GARNER v. McKAY.

No. 4486.

Springfield Court of Appeals. Missouri.

March 30, 1929.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by H. L. Garner against Virgil McKay, administrator ad litem of the estate of Nancy J. Hendrix, deceased. From a judgment for plaintiff, the administrator appeals. Affirmed.

L. R. Jones and John M. Dalton, both of Kennett, for appellant.

Smith & Zimmerman, of Kennett, for respondent.

COX, P. J.

This action arose in the probate court of Dunklin county upon a claim filed by plaintiff against the estate of Nancy J. Hendrix for services for board and care during the last five years of her life and for money loaned deceased during the same period. The claim was allowed by the probate court in the sum of $414. An appeal was taken to the circuit court, where upon trial by jury a verdict was returned in favor of plaintiff for $561. Judgment was rendered accordingly, and the administrator appealed.

In a general way the facts may be summarized as follows: The plaintiff was the son-in-law of the deceased, Nancy Hendrix, and lived in the town of Hornersville, about a block from where Mrs. Hendrix lived. Plaintiff had two children and his wife, a daughter of deceased, who died when these children were very small. About the time she died, the husband of Mrs. Hendrix deserted her and went away and has not been heard of since. When plaintiff's wife died, his mother came to live with plaintiff, and his mother-in-law, Mrs. Hendrix, also made her home there at least a part of the time. Plaintiff's mother died not long thereafter, and his two children also died when they were quite young. Mrs. Hendrix seems to have owned the home where she and her husband lived until he deserted her. After her husband left her, she spent most of her time at plaintiff's home until she died some 20 years or more later.

The contention of appellant is that the evidence shows as a matter of law that Mrs. Hendrix lived at the home of plaintiff as a member of his family, and for that reason the presumption follows that any service or support furnished her by plaintiff was presumed to be gratuitous, and since no specific contract to pay for such service was shown, a verdict in favor of the administrator should have been directed by the court. We do not deem it necessary to set out the evidence in detail. We have carefully examined it and have reached the conclusion that the court would not have been warranted in directing a verdict for defendant. The law is well settled that where a family relation exists, that is, where parties are shown to have lived together as members of the same family, whether of blood relation or not, there is a presumption that all ordinary services rendered by one to the other are gratuitous, and if a charge is made by one against another, he carries the burden of proving that at the time the services were rendered, the one intended to charge and the other to pay therefor. Appellant cites us to Goff v. Scoggin (Mo. App.) 293 S. W. 480; Nelson v. Poorman's Estate (Mo. App.) 215 S. W. 753; Lauf v. Wiegersen (Mo. App.) 297 S. W. 79; and cases from other jurisdictions upholding that position. The rule there contended for is well recognized, and we need not discuss it further.

There is another element in this case which, in our judgment, should be given consideration in passing upon a demurrer to plaintiff's evidence. Both parties proceeded upon the theory that nothing could be recovered for services rendered more than five years prior to the death of Mrs. Hendrix by reason of the Statute of Limitations. The evidence for plaintiff tends to show that during the last five years of the life of Mrs. Hendrix, she was practically an invalid and required unusual and extraordinary care. One witness testified that she could not wait upon herself and required as much care as a little baby. It has been held that even as between a parent and...