Hays v. The Estate of Miller

• Decision Date: 12 March 1915
• Citation: 173 S.W. 1096,189 Mo.App. 72
• Parties: S. C. HAYS, Respondent, v. THE ESTATE OF CYNTHIA E. MILLER, Deceased, Appellant
• Court: Missouri Court of Appeals

173 S.W. 1096

189 Mo.App. 72

S. C. HAYS, Respondent, v. THE ESTATE OF CYNTHIA E. MILLER, Deceased, Appellant

Court of Appeals of Missouri, Springfield

March 12, 1915

Appeal from Polk County Circuit Court.--Hon. C. H. Skinker, Judge.

Judgment affirmed.

Rechow & Pufahl for appellants.

(1) The objection to the introduction of any evidence should have been sustained. The statement is not sufficient. It nowhere appears whether the charge was intended to be for board and nursing the deceased or some other person; nor can it be determined, except by conjecture, what amount is claimed "at twenty dollars per year, $ 260," is absolutely meaningless. Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Watkins v Donnelly, 88 Mo. 322; Hill v. St. Louis, Ore & Steele Co., 90 Mo. 103, 106; Seligman v Rogers, 113 Mo. 642, 660; Coggett v. Blanke, 70 Mo.App. 499; McCrary v. Good, 74 Mo.App. 425; Moffett, West Drug Co. v. Johnson, 80 Mo.App. 428; Rechnitzer v. Vogelsang, 117 Mo.App. 148; Moffett, West Drug Co. v. Crider, 124 Mo.App. 109. (2) The affidavit attached to the claim is not sufficient; it read as follows: "S. C. Hays being duly sworn according to law, says that to the best of his knowledge and belief, he has given credit to the estate of Cynthia E. Hays. Rev. Statutes 1909, section 201; Peter v. King, 13 Mo. 143; Jenkins v. Morrow, 131 Mo.App. 288, 297. (3) The demurrer to the evidence should have been sustained. (a) As between brother and sister where they live together, the law presumes that the services, (if any were rendered by the claimant S. C. Hays, of which there is no testimony) were rendered gratuitously. (b) There is not a particle of testimony in the record that S. C. Hays ever intended to charge for his services or for board. Smith v. Meyers, 19 Mo. 433, 435; Morris v. Barnes' Adm., 35 Mo. 412; Steele v. Steele, 161 Mo. 566; Callahan v. Riggins, 43 Mo.App. 130; Louder v. Hart, 52 Mo.App. 377; Castle v. Edwards, 63 Mo.App. 564; Lawrence v. Bailey, 84 Mo.App. 107; Rose v. Mays, 139 Mo.App. 246; Fitzpatrick v. Dooley, 112 Mo.App. 165, 171; Brand v. Ray, 156 Mo.App. 622; Mabary v. Mabary, 173 Mo.App. 437; Cowley v. Dagley, 174 Mo.App. 561; McGrath v. O'Hare, 175 Mo.App. 9; Hodge v. Hodge's Adm., 11 L.R.A. (N. S.) 873. (4) There was not a "running account" between the parties as will postpone the running of the Statute of Limitations as to any items more than five years old at the time of the death of Mrs. Miller. Harrison v. Hall, 8 Mo.App. 167; Macke v. Davis, 61 Mo.App. 524; Mabary v. Mabary, 173 Mo.App. 437, 448; McGrath v. O'Hare, 175 Mo.App. 9, 16; Sidway v. Mo. Land & Live Stock Co., 187 Mo. 649, 669.

L. Cunningham and B. J. Emerson for respondent.

(1) The court properly overruled defendant's objection to the introduction of any evidence. If the demand was indefinite, defendant's remedy was by motion to require plaintiff to make it more definite and certain. Britain v. Fender, 116 Mo.App. 93; Garnett & Allen Paper Co. v. Midland Publishing Co., 156 Mo.App. 187. (2) Defendants filed answer and counterclaim and waived the defect if any existed. Ewing v. Vernon Co., 216 Mo. 681; In re Ford, 15 Mo.App. 153. (3) The courts do not favor the practice of challenging the sufficiency of pleadings by oral objection to the introduction of evidence and it will avail nothing after verdict unless the petition be fatally defective. Every intendment is to be taken in favor of the petition in such cases. Porter v. Illinois Southern Ry. Co., 137 Mo.App. 293; Wilson v. City of St. Joseph, 139 Mo.App. 557; Patterson v. Traction Co., 178 Mo.App. 250; Downs v. Andrews, 145 Mo.App. 173; Wilkinson v. Misner, 158 Mo.App. 551. (4) No formal pleadings are required in probate court and all that is required is that the statement show the nature of the claim so that the administrators know what they are required to defend against. Christainson v. McDermott Estate, 123 Mo.App. 455. (5) A defective statement of a cause of action is good after verdict. Norman v. Sheip, 142 Mo.App. 138; W. W. Brown Const. Co. v. McArthur Bros. Co., 236 Mo. 41; Wyler v Ratican, 150 Mo.App. 474; Parker v. United Rys. Co., 154 Mo.App. 126; Summers v. Keller, 152 Mo.App. 626. (6) The common-law rule of "express aider" obtains in this State under which a material omission in plaintiff's petition is corrected if defendant puts the matter in issue by answer. In this case defendant filed an answer and counterclaim. McIntyre v. Federal Life Ins. Co., 142 Mo.App. 256. (7) The affidavit to the plaintiff's demand contains every essential averment and the name "Cynthia E. Hays" may be rejected as surplusage. It is sufficient if substantial requirements of the statute be met. R. S. 1909, sec. 201; Waltemar v. Schnick's Estate, 102 Mo.App. 133. (8) The demurrer to the evidence was properly overruled. There is so little merit in the contention of appellant that there is no evidence of services rendered deceased by respondent that it is only necessary to ask the court to consider the evidence and remember that the services rendered by plaintiff's children, his wife and his employees were in law rendered by him. The services rendered by his wife were not of such a character as would come under her separate earnings. Lambert v. Hodgdon, 172 Mo.App. 24; Bruce v. United Railways Co., 175 Mo.App. 568.

STURGIS, J. Robertson, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

--This suit originated in the probate court of Polk county, Missouri. Plaintiff there filed the following claim:

"DEMAND AGAINST ESTATE.

The Estate of Syntha E. Miller, Deceased,

To S. C. Hays, Dr.

1900

Dollars

Cts.

To Board and nursing from April,

1900, until the 3rd day of July,

1913, at $ 20 per year

260

00"

To this is appended the affidavit of the claimant, in usual form, to the effect that he has given credit to the estate of Cynthia E. Hays, deceased, for all payments and offsets to which it is entitled. The defendant administrators appeared in the probate court and filed an answer and counterclaim founded on an account for labor performed by the deceased for plaintiff during the same period. A jury trial was then had in the probate court, resulting in a judgment for plaintiff. On appeal to the circuit court the cause came on for trial on the same pleadings and with the same result and on the first witness being sworn the defendant objected to the introduction of any evidence for the reason the petition fails to state facts sufficient to constitute a cause of action. This is the first error assigned for our review.

It should be again noted that the method of challenging the sufficiency of pleadings by objecting to the introduction of evidence thereunder is not in favor with our courts. The pleadings should be settled before going to trial and to this end any objection thereto should be presented by demurrer or proper motion in order that the court may rule on same, permit amendments to be made, etc., before the trial. Only such objections as are necessarily and absolutely fatal to the pleadings will be allowed in this way. [Porter v. Railroad, 137 Mo.App. 293, 296, 117 S.W. 680; Wilson v. St. Joseph, 139 Mo.App. 557, 561, 123 S.W. 504; Patterson v. Traction Co., 178 Mo.App. 250, 256, 163 S.W. 955; Downs v. Andrews, 145 Mo.App. 173, 130 S.W. 472; State ex rel. v. Delaney, 122 Mo.App. 239, 99 S.W. 1; Haseltine v. Smith, 154 Mo. 404, 55 S.W. 633. Such an objection does not cover a case where a cause of action is only defectively stated, but the allegations must be construed most favorably to plaintiff and every fair inference drawn therefrom in plaintiff's favor. [Wilson v. St. Joseph, supra.] The petition is not subject to such an objection unless it would be fatally defective after verdict. [Porter v. Railroad, supra; Wilkinson v. Misner, 158 Mo.App. 551, 555, 138 S.W. 931.]

The prime object of a petition or statement is to inform the defendant of the nature of plaintiff's claim that he may prepare to meet it and that a judgment thereon will be a bar to any further suit on the same claim. The specific objection now made is that this statement does not show that the "board and nursing" charged for was the board and nursing of the deceased. We think, however, that this is the fair inference from the fact of claimant charging her estate therefor. As one person does not usually pay for the board of another and such would require a special contract, the natural inference is that a bill for board and nursing against a person is for the board and nursing of such person. Besides this, the defendant filed an answer and counterclaim in the probate court and the case was tried there without objection and possibly without discovery that the claim was not sufficient. This answer and counterclaim for services rendered by the deceased to plaintiff during the same period of time he was boarding and caring for her was an "express aider." [McIntyre v. Insurance Company, 142 Mo.App. 256, 265, 126 S.W. 227.] Such trial in the probate court must necessarily have disclosed the full nature of plaintiff's claim and defendant could not have been kept in ignorance of same or been in any way prejudiced thereby. As stated in Christianson v. McDermott's Estate, 123 Mo.App. 448, 100 S.W. 63: "It sufficiently appears that plaintiff's demand is for services rendered by plaintiff for the deceased for certain years, upon an implied obligation. The strict rules of pleading governing practice in the circuit courts are not required in cases originating in probate courts. All that is required is that the statement shall show the nature of the claim so that the administrator or executor may know what he has to defend against."

We have noted the many cases which diligence of defendant's counsel has collected,...