Heathcock v. Wolfe

• Citation: 136 S.W.2d 105
• Decision Date: 26 December 1939
• Docket Number: No. 6072.,6072.
• Parties: HEATHCOCK v. WOLFE.
• Court: Missouri Court of Appeals

136 S.W.2d 105

HEATHCOCK v. WOLFE.

No. 6072.

Springfield Court of Appeals. Missouri.

December 26, 1939.

Rehearing Denied February 9, 1940.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be published in State Reports."

Proceeding by Bob Heathcock against John J. Wolfe, executor and administrator of the estate of A. D. Rader, deceased, on a claim for work, labor, and personal services, wherein the executor filed a counterclaim. From a judgment in favor of the plaintiff, the defendant appeals. After the case was submitted to the Court of Appeals, the death of John J. Wolfe was suggested, and James A. Koontz, administrator de bonis non with the will annexed of the estate of A. D. Rader, deceased, was substituted as appellant.

Affirmed.

R. H. Davis, of Joplin, for appellant.

John J. Wolfe, of Joplin, pro se.

Kelsey Norman, Alfred K. Lee, and Henry Warten, all of Joplin, for respondent.

SMITH, Judge.

Since this case was submitted to this court, there has been filed suggestions of the death of John J. Wolfe, with a motion praying that James A. Koontz, Administrator de bonis non with the will annexed of the estate of A. D. Rader, deceased, be substituted as appellant in this case. Such substitution has been by this court ordered.

This is an appeal from a verdict and judgment of the Jasper County Circuit Court in favor of the respondent upon a claim and demand originally filed in the probate court of that county against the appellant as executor and administrator of the estate of Andrew D. Rader, deceased. On October 5, 1936, Bob Heathcock filed in the office of the probate court of Jasper County the following claim and demand.

                      "Notice of Claim Against Estate
                "John J. Wolfe, executor of Estate of A. D
                Rader
                

"Take notice, that on the first day of the next regular adjourned Term of the probate court, Jasper County, Missouri, to be held on the 9th day of November, 1936, or so soon thereafter as I can be heard, I shall present for allowance, the following claim, against said estate. For work, labor and personal services performed in accordance with contract with Andrew D. Rader, now deceased, in and about his home and place of business, from the 1st day of March, 1935, until his death, November 4th, 1935, $912.00."

On March 9, 1938, the following counterclaim was filed by John J. Wolfe, executor, caption and signature omitted: "Bob Heathcock to Estate of A. D. Rader, deceased, John J. Wolfe, Administrator, Dr. To balance found to be due A. D. Rader on dissolution and accounting between Bob Heathcock and A. D. Rader in the purchase and sale of cattle and live stock $400.00."

Trial was had in the probate court, on March 9th, 1938, and the court took said cause under advisement and consideration until the 18th day of May, 1938, at which time the following disposition was made of said cause, to wit (caption omitted): "Now on this day comes on for determination the claim of Bob Heathcock v. estate of Andrew Rader, deceased, said claim having been continued to this May Term, 1938. The court after due deliberation in the matter finds for defendant and orders the claim disallowed in the sum of $912.00."

No ruling was made in the matter of the counterclaim filed by the administrator.

In due time, Heathcock filed affidavit for appeal and an appeal was granted to the circuit court of Jasper County, at Joplin.

Said claim and demand of plaintiff and the counter claim of defendant were on the 14th day of October, 1938, and during the September term, 1938, tried before the Hon. W. J. Owen, judge of Division No. 2 of said circuit court, and a jury. The jury returning into court the following verdict:

"We, the jury, find the issues in favor of the plaintiff, Heathcock, in the sum of $912.00 and against the defendant on his counterclaim.

                            "(Signed) Albert Gisel"
                

And thereupon judgment was rendered and entered in favor of the plaintiff and against John J. Wolfe, executor of said estate, in the sum of $912.

Thereafter, on October 18th, 1938, and during the September term, 1938, of said circuit court, defendant and appellant filed his motion for new trial, and also filed his motion in arrest of judgment, which said motions were, on January 14th, 1939, overruled —said motions having been, under general order, continued until that term of court.

Thereafter, and on the same day, defendant filed his affidavit for appeal to the Springfield Court of Appeals, which affidavit was in due form of law, and thereupon, on the same day, defendant was granted an appeal to the Springfield Court of Appeals.

This is a suit by plaintiff to recover for services alleged to have been rendered Rader by plaintiff and his wife in taking care of Rader from March 1, 1935, until his death November 4, 1935, under an alleged contract had with Rader whereby Rader agreed to pay Heathcock One Thousand Dollars, if he and his wife would move into his home and take care of him until his death. In defendant's counter claim, it was alleged that Heathcock was due the estate $400 under an agreement between Rader and Heathcock whereby Rader was to furnish the money for the purchase of cattle with the plaintiff to buy and sell the cattle, with profits of the business to be divided equally. The administrator contending that Heathcock owed a balance of $400.00 to the estate from said cattle business. Heathcock admitted that he owed $88 to the estate from the cattle business, and that giving the estate credit for that amount, that it left a balance due him upon the contract of $1,000, of $912 the amount for which he filed claim.

The defendant, correctly we think, said in his printed statement: "The only questions submitted to the jury were the questions of the existence of the alleged contract and agreement between Rader and plaintiff Heathcock, and the question of the indebtedness of Heathcock to the estate on the cattle adventure."

The jury passed on the facts as presented and returned a verdict for plaintiff in the amount of the claim $912, and the case is presented to us on appeal under twelve assignments of error, which we shall consider in the order presented.

The first is that the court erred in not discharging the jury when attorney for plaintiff was making his opening statement. The abstract shows the following:

"By Mr. Norman: Mr. Rader had no relatives in this country. He lived in the neighborhood out there many years, and had accumulated quite an estate—no millionaire proposition but he had several houses here in Joplin, and had been in business and I think his estate was worth ten or fifteen thousand dollars.

"By Mr. Davis: We object to that.

"By Mr. Norman: That will be competent, for the reason we intend to show, as part of this case—

"By Mr. Davis: I move the court to discharge the jury.

"By the Court: I will not discharge the jury—but confine yourself to the issues in the case.

"To which ruling of the court the defendant at the time duly excepted."

We think there is no merit to the contention that this statement was improper. If a man past eighty years of age was living alone in the country, why wouldn't it be competent to show the reason why he was making a contract with some one to live with him? If he had property, personal and real, it would be the more reason as to why he would make a contract with some one to live with him. It was insisted that no such contract was made and that it was not reasonable that he would make such a contract. We think it was competent to show the circumstances that existed were such that a man in his condition would make such a contract, and that the trial court did not err in refusing to discharge the jury.

The second assignment is that the court erred in permitting Ida Heathcock, the wife of the plaintiff, to testify, over the objection of the defendant, that Rader would come home drinking and vomit on himself. We quote from the abstract a part of this lady's testimony, where this objection was made as follows:

"Q. Tell the jury in your own words what took place there between Bob and Mr. Rader, in your presence. A. Mr. Rader came down there the first part of March, one morning, and said those Campbells are going to leave, were moving away, so he wanted to know of my husband in my presence, if him and I would come up there and live with him. He said he would have to have somebody to keep house for him and that he would, if we would come and stay with him through his life time, he would give us a thousand dollars.

"Q. You, or Mr. Heathcock? A. That he would give Bob a thousand dollars. He said he had plenty of money and would rather Bob would spend it than any one else, and that he would furnish him the money to deal in live stock.

"He had a cow and a few chickens and a little grocery store.

"Q. What did Bob say to this? A. He told him he would talk it over with me and let him know. So we did, and decided to take up the proposition. The Campbells left that same day. We next saw Mr. Rader that evening, and told him we would accept the proposition. We moved up there, all of our household goods. He told me, after we moved up there, to take charge of the house and run the house to suit myself, and I did, and he was always pleased. I took care of the grocery store, waited on trade, he was always pleased with the work I did. I cooked for him, did his laundry, and when he was sick I would wait on him and give him his medicine and take care of him like that. He was just like a child. You had to see that he was kept clean. I kept his clothes clean, and when he was sick I would wait on him and give him medicine and take care of him like a child.

"Q. Did he come home drinking? A. He never did come home—

"Mr. Davis: Object to that; that doesn't tend to prove or disprove any issue in this case.

"By the Court: It shows his condition and what they had to do for him. I believe I will permit it, and allow you an exception.

"To which ruling of the court the...