Goeth v. McCollum, 9852.

• Citation: 94 S.W.2d 781
• Decision Date: 20 May 1936
• Docket Number: No. 9852.,9852.
• Parties: GOETH v. McCOLLUM et al.
• Court: Court of Appeals of Texas

94 S.W.2d 781

GOETH v. McCOLLUM et al.

No. 9852.

Court of Civil Appeals of Texas. San Antonio.

May 20, 1936.

Appeal from County Court at Law No. 1; Bexar County; McCollum Burnett, Judge.

Suit by B. E. McCollum and others against Fred C. Goeth, administrator of the estate of Mamie Jewett, deceased, Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Goeth, Webb & Goeth, of San Antonio, for appellant.

Henry, Bickett & Bickett, of San Antonio, for appellees.

BOBBITT, Justice.

On February 11, 1935, B. E. McCollum, Pete Murray, and Mozzelle Murray, wife of Pete Murray, as partners and as plaintiffs, appellees here, brought this suit in the county court at law No. 1 of Bexar county against Fred C. Goeth, in his official capacity as administrator of the estate of Mamie Jewett, deceased, as defendant, appellant here, wherein it was alleged that appellees owned and operated the partnership business known by the trade-name of Hagy & McCollum, Funeral Directors, and that during September, 1934, appellees conducted and directed the funeral of Mamie Jewett, deceased, furnishing a casket and complete funeral service, which included the furnishing of passenger cars, clothing, and the preparation of the grave, for all of which a charge was made in the sum of $522; that said services, supplies, and equipment were specifically contracted for and ordered by the family of said decedent, and by reason of such fact the estate of the decedent became charged with, and obligated to pay, the amount of said funeral bill, as a claim of the first classification and order under the laws of Texas.

Appellees alleged, in the alternative, that said services and equipment were reasonably necessary and appropriate for the proper conduct of the funeral of said decedent, and that each and every one of said items were of the reasonable value of the prices charged therefor.

Appellees further alleged that a claim in the sum of $522 was duly presented to the administrator, properly authenticated, during November, 1934, which was rejected in whole, and that payment was at all subsequent times refused by said administrator, and by reason whereof this suit became necessary in order to have said claim established, allowed, and paid as a first and preferred claim against said estate.

Annexed to the petition, as exhibits, appeared an affidavit to the claim mentioned in the petition, the administrator's rejection of same, and a statement of the account in detail.

On May 21, 1935, appellant filed his first amended original answer, demurred generally to appellees' pleadings, and specially excepted to the items of plaintiffs' account reading "Sept. 23. Casket with complete service $465.00," because said complete service was not specifically described. He then denied the allegations of plaintiffs' pleadings, and for special answer alleged that the gross value of the Jewett estate was only approximately $1,152, against which lawful claims existed in the sum of about $550, without taking into account this claim of appellees, or the cost of marking a grave-stone, costs of the probate court, or the court below, attorney's and administrator's fees; that the charges of appellees were, singly and in the aggregate, unjust and unreasonable; that said funeral and the charge made therefor was not suitable to the estate of the deceased, and was unwarranted and excessive, considering the net value of the estate; that no person had any right or authority to incur funeral expenses in the amount demanded by appellees and to bind the estate for the payment of same; that a proper and reasonable charge, in view of the net value of the estate, for the casket, clothing, and services rendered by appellees, was a sum not exceeding $250; that, when the claim of appellees was presented to appellant for allowance, all such facts, though long previously known to appellees, were again stated to them by appellant, who offered to approve appellees' claim and allow same for the sum of $250, but no more; but that appellees refused to reduce their claim and insisted that it be approved in full; that appellant declined to approve said claim and then rejected same; that appellant has at all times been ready, willing, and able to approve appellees' claim for any amount not to exceed $250.

Appellant denied that appellees were entitled to recover anything, on the claim as presented, but stated that, should recovery be allowed, it be limited to $250; further, appellant sought to recover his costs and attorney's fees in this cause against appellees upon the theory that their demands were unjust and unreasonable, and he should recover the fee and costs he had been forced to incur in order to defend the action.

On May 21, 1935, after the court had overruled and sustained certain exceptions of the parties, the cause proceeded to trial before a jury. After appellees had introduced their evidence, appellant urged his motion for an instructed verdict, which was overruled.

After the appellees had concluded their testimony and appellant's motion for an instructed verdict had been overruled, a discussion was had by the court and counsel in open court, but in the absence of the jury, at which time it was made...