Hyde v. Starnes

• Decision Date: 31 May 1945
• Docket Number: 7 Div. 825.
• Citation: 22 So.2d 421,247 Ala. 26
• Parties: HYDE v. STARNES.
• Court: Alabama Supreme Court

22 So.2d 421

247 Ala. 26

HYDE v. STARNES.

7 Div. 825.

Supreme Court of Alabama

May 31, 1945

Earl McBee and D. G. Ewing, both of Birmingham, for appellant.

W T. Starnes, of Pell City, and Hood, Inzer, Martin &amp Suttle, of Gadsden, for appellee.

THOMAS, Justice.

This appeal is from a decree of the circuit court in equity disallowing a claim filed by Mrs. Dee Hyde against the estate of Mattie F. Abbott, deceased. The claim was for the principal sum of Nine Hundred and Ninety ($990) Dollars with interest thereon for services rendered and board furnished by claimant to her aunt, Mrs. Abbott.

The estate and administration thereof was duly removed from the probate court to the circuit court in equity. The claim in question had been properly verified and duly filed in the office of the probate judge of the county having jurisdiction of the administration of the estate. Mr. Willingham was appointed administrator of the estate with the will annexed and letters of administration issued. Objection was made to the claim by the administrator ad litem, at the insistence of one of the legatees under the will. The trial was had on the objection of the administrator ad litem.

The suit or claim was based on quantum meruit. Robertson v Business Boosters' Country Club, 210 Ala. 460, 98 So. 272; Allen v. Mendelsohn & Son, 207 Ala. 527, 93 So 416, 31 A.L.R. 1063; 7 Corpus Juris Secundum, Assumpsit Action of, § 2, p. 110; 4 Amer.Juris, p. 497.

There was no denial that decedent owed claimant for her board and for nursing her, for the time, and reasonable compensation that obtained for such services and things furnished. 51 C.J. p. 116. The evidence in opposition to, and in support of, the allowance for such services was taken before a commissioner appointed by the court, transcribed and presented to the trial court for decision. The decree rendered disallowed the claim in toto. As the testimony was taken before a commissioner appointed by the court, and not before the court rendering the decree (Hodge v. Joy, 207 Ala. 198, 92 So. 171), no presumption of correctness can be indulged in favor of that decree. This court must reach its own conclusion rested upon the legal evidence without regard to the decree of the lower court. Spears v. Taylor, 149 Ala. 180, 42 So. 1016, 13 Ann.Cas. 867.

The claim of appellant was submitted for decree on Nov. 10, 1943. W. T. Starnes, as administrator ad litem, filed his note of submission on October 19, 1943. The decree disallowing the claim was rendered on Nov. 20, 1943. The appeal was taken December 20, 1943. The act approved July 1, 1943, p. 308, was in effect on the dates indicated.--Code 1940, Tit. 61, § 216. The disallowance of the claim by the court was a final judgment from which an appeal may be prosecuted. Code 1940, Tit. 61, § 216. Gant v. Gilmer, 245 Ala. 686, 18 So.2d 542; Dudley v. Whatley, 244 Ala. 508, 14 So.2d 141, 147 A.L.R. 508; Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So.2d 125. The most recent case by this court is Jennings v. Provident Life & Accident Co., 22 So.2d 319. See Code 1940, Tit. 7, § 433, as to competency of parties as affected by interest, as affecting the interests of decedent's estate, by one person having a pecuniary interest in the result of the suit or proceedings.

This court will consider only the relevant, material, competent, and legal testimony offered by the parties. Sansom v. Sturkie, 245 Ala. 514, 18 So.2d 267; Jennings v. Provident Life & Accident Ins. Co., et al., 22 So.2d 319.

The legal evidence shows that claimant bought groceries, prepared and furnished meals to deceased, waited upon her and nursed her when in ill health from March 1, 1936, to November 30, 1938, and that a reasonable charge for such services was $30.00 per month, totaling the amount of the claim. Mrs. Abbott, the deceased, was partly stricken with paralysis in 1935, and thereafter had other troubles which rendered her unable to do much walking. She limped badly and was afflicted with cataracts on her eyes. Decedent agreed to pay the claimant, her niece, a reasonable sum for such service and attention, but moved away without paying for the same.

The evidence further shows that deceased owned her own home, where she was living at the time she had the stroke of paralysis in 1935, and continued to live there until March 1, 1936, at which time she moved to a home which was operated by claimant, and continued to live with claimant until the last day of November, 1938, when deceased had somewhat improved in health, and returned to her own home.

The evidence shows that claimant had been looking after deceased at her home prior to the time of her removal to the home with claimant and claimant's mother. There was evidence that an understanding was had that claimant's mother would furnish a room to the deceased free of charge, and claimant was to buy the groceries, furnish the meals, and wait on deceased as requested for which the claimant was to be paid by the deceased. The evidence tends to show that $30.00 per month was a reasonable charge for such services. That deceased was asked several times for payment and replied she would make the same, 'when she got ready to pay them,' that her money was tied up and she was borrowing money during that time from a third party.

The evidence established the fact that the claim was duly presented under the provisions of Section 214, Tit. 61, Code 1940. It is insisted by the administrator ad litem that the claim was barred by the statute of limitations, and was not presented within the time required by law. However, the claim was filed in the probate office on May 15, 1941, the will was probated on February 19, 1941, and the personal representative appointed on December 20, 1940, and the insistence is not well taken.

The claim was based upon the quantum meruit and appellant was competent to testify what was a reasonable charge for her work in nursing and boarding the deceased.

'In action to recover value of board and lodging furnished defendant's intestate, who had been treated as a member of plaintiff's family, admitting testimony of witnesses as to value without showing as to competency to express opinion held proper, notwithstanding Code 1923, § 7656 (Code 1940, Tit. 7, § 367), since knowledge of such value does not depend on professional skill or experience as boarding house keeper.' Moore v. Robinson, 214 Ala. 412, 108 So. 233. (Parenthesis supplied.)

Any...