Garrett v. Hoctel's Estate

• Citation: 142 N.E.2d 449,128 Ind.App. 23
• Decision Date: 15 May 1957
• Docket Number: No. 18801,18801
• Parties: Lodema GARRETT, Appellant, v. The ESTATE of Christian HOCTEL, Deceased, Appellee.
• Court: Court of Appeals of Indiana

Page 449

142 N.E.2d 449

128 Ind.App. 23

Lodema GARRETT, Appellant, v. The ESTATE of Christian HOCTEL, Deceased, Appellee.

No. 18801.

Appellate Court of Indiana, In Banc.

May 15, 1957.

Rehearing Denied June 25, 1957.

Transfer Denied Nov. 13, 1957.

Louis L. Anderson, South Bend, Anderson & Wattles, South Bend, of counsel, for appellant.

Bruce C. Hammerschmidt, South Bend, Hammerschmidt & Johnson, South Bend, of counsel, for appellee.

KELLEY, Presiding Judge.

Appellant filed a claim for services 'performed, furnished and rendered' to her father, the decedent, continuously from April 15, 1945 to March 27, 1953, the date of his death. At the close of appellant's evidence, the court sustained the appellee's 'motion for judgment' and entered judgment for appellee. Such action by the court is here assigned as error as is also the overruling by the court of appellant's motion for a new trial.

The available grounds in appellant's motion for a new trial are that the decision of the court is contrary to law; seventeen asserted errors of the court in sustaining appellee's objections to questions put by appellant to certain witnesses; and error in permitting a witness to remain in the court room during the trial after the granting of a motion for separation of witnesses.

There was no error in permitting Inez Morrow, a witness and heir, to 'sit in the court room' during the trial. It was a matter within the sound discretion of the court and appellant shows no harm or prejudice resulting to her from the ruling nor that the court abused its discretion. We have carefully reviewed each of seventeen charged errors of the court in sustaining objections to questions put by appellant to certain of her witnesses and find no error. It would serve no productive purpose to here detail each question, answer and offer to prove. To generalize, we find: one question concerning whether the witness had read the content of letters, without a sufficient and proper foundation being laid for oral testimony with reference thereto; one question was duly answered; one question called for testimony the rejection of which was harmless because other evidence established the same matter inquired about; our questions were too indefinite and general; seven questions were irrelevant to the issues; two questions were bad in form; and in one instance the offer to prove was not consistent with the answer called for by the question.

The court's ruling in material substance, was as follows:

'Considering the evidence most favorable to the claimant on the motion for judgment, the court finds that in view of the presumption which prevails in this case, that is that the service furnished by this claimant is grantuitous. And now the court further finds that such presumption has not been rebutted by clear, positive and distinct evidence, therefore, the Estate's motion for judgment at the conclusion of the claimant's evidence is sustained.'

There is no question in the record as to the rendition by appellant of the services hereinafter referred to. The appellee, in its motion for a finding, stated that 'she did render and did perform certain services' and in its brief states that 'appellee concedes that services were rendered by appellant to her father and mother while she was living with them during the period of April, 1945, to the death of her father in March, 1953, * * *'; the court, in preliminary discussion of appellee's motion, prior to hie ruling thereon, said: 'Now we have had a lot of evidence of services. I am satisfied she had rendered the services and is equitably entitled to something, but we are not faced with equity but with law.' Further, the appellant, to obtain evidence as to the reasonable value of the services, propounded a hypothetical question to the witness, Samuel I. Brooks Manager of the South Bend local office of the Indiana Security Division, wherein the services rendered by appellant were detailed at length. In overruling an objection made to the question by appellee, the court, after appellant deleted from the question the reference to services rendered to one Charley Johnson and that appellant cared for the lawn said: 'I believe that the evidence supports this hypothetical question since he deleted these two matters. * * * I think the question is amply supported by the evidence.'

The question presented is whether there was any evidence of a contract by decedent to pay for the services rendered by appellant and that appellant expected compensation for her services.

There is no contention that there was an express contract to pay for the services rendered. Appellant's case rests upon the establishment of an implied contract or promise to pay. The relationship of appellant and decedent, being daughter and father, raised a presumption that the furnished services were gratuitous. Appellant does not contest the validity of such presumption. The question, then, narrows down to the point whether appellant's evidence showed circumstances of 'such potency as to overcome the prima facie presumption that the services were rendered gratuitously.' Quotes are from Crampton v. Logan, 1902, 28 Ind.App. 405, 408, 63 N.E. 51.

The record evidence is copious and occupies some 481 pages of the transcript. Such evidence, considering only the evidence favorable to appellant, tends to establish the following facts and circumstances:

In April, 1945, the decedent, Christian Hoctel, then about 81 years of age, and his wife, Wilda May Hoctel, then about 72 years of age, lived on a farm located about 2 3/4 miles from Lakeville, Indiana. Their home was an 8 or 9 room colonial type wood frame house, without furnance heat, plumbing, inside toilet facilities, or a bathroom. The toilet was an outside structure located about 75 feet from the home. An old fashioned slop jar was utilized for toilet needs within the home. Water supply was furnished by a cistern outside the house and a pump in a 'well in the back kitchen' of the house, access to which required the use of three steps. A woodburning cook stove was used for cooking and the heating of the water.

At said time, and for a time prior thereto, one of decedent's sons, known as Chris Hoctel, Jr., and his wife, resided with decedent and his wife at said farm home, and farmed the land on half shares. The son and his wife built a home of their own and notified the decedent and his wife that they were leaving them, which they did about August, 1945.

Appellant, a daughter of decedent, then of the approximate age of 47 years, came to the home of her parents in April, 1945, for the purpose of assisting and helping them about the household and she remained there until the death of her father in March, 1953. After the son, Chris, Jr., and his family moved from the home, there remained, as members of the household, the decedent, his wife, and the appellant. The latter had been previously employed in private homes as a maid and cook.

The decedent's wife, appellant's mother, in April, 1945 was 72 years of age, about five feet tall, and weighed in the neighborhood of 220 pounds. She was afflicted with diabetes and varicose veins which ruptured at times and for the support of which she wore rubber stockings. It was difficult for her to get around, and for such purpose she used a cane and supported herself on the table and chairs as she moved about. She performed only minor tasks about the household. This condition continued until her death in January, 1947.

After the death of her mother, appellant continued in the household with her father, the decedent. The latter, in advanced age was active but was nervous and afflicted with severe infirmities. He became ill with an enlarged prostate gland, with accompanying difficulty of urination, and for which he was given operative procedure on July 10, 1947. This condition caused frequent uncontrolled urination on his personal clothing and the bed, necessitating the use of rubber sheets. In 1949 he suffered from boils about his face, eyes and hands, requiring medical attention and application of epsom salts solution. A cancerous condition of his nose which had eaten into a portion thereof required the application of salve and x-ray treatments. In 1947 or 1948 decedent sustained a broken jaw which required care and the preparation and straining of special food and soups. An injury to his foot from a falling log required him to 'soak his leg and foot', and blood poisoning resulting from an injury to his hand necessitated medical attention and tetanous injection. An inoperable cancer of the rectum with an obstructure of the colon occasioned incontinency of decedent's bowel with consequent loss of bowel control and soilage of his clothing and bedding. This condition continued until decedent's death on March 27, 1953.

The appellant during all the eight-year period from April 15, 1945 to the time of the death of her father on March 27, 1953, with the exception of a few days at various times totaling in all approximately one month, or 60 days, was in constant attendance upon her said father, and upon her mother until the latter's demise on January 23, 1947, and acted in the capacity of a practical nurse for them. During all of said period, she had complete charge of all the household affairs and assumed the responsibilities and performance of the labors of a housekeeper of a farmer's household. She prepared special foods and diets for her said father and mother; purchased most of the foods and groceries, some at her own expense; canned special, sugarless foods, and fruits and vegetables with saccharine for her mother and separate foods for her father; scrubbed the floors, washed the windows and worked in the barn and chicken house; applied medication for the boils and the hemorrhoids and piles suffered by her father, bathed his injured (poisoned) hand, and prepared the water and helped him bathe and 'soak' his foot injured by the log; sewed and patched the clothing;...