Jacobs v. Brock

• Decision Date: 23 September 1965
• Docket Number: No. 37320
• Citation: Jacobs v. Brock, 406 P.2d 17, 66 Wn.2d 878 (Wash. 1965)
• Court: Washington Supreme Court
• Parties: James JACOBS and Beatrice Jacobs, Appellants, v. Elizabeth A. BROCK, Executrix of the Estate of Harry M. Brock, deceased, Respondent.

Page 878

66 Wn.2d 878

406 P.2d 17

James JACOBS and Beatrice Jacobs, Appellants, v. Elizabeth A. BROCK, Executrix of the Estate of Harry M Brock, deceased, Respondent.

No. 37320.

Supreme Court of Washington, En Banc.

Sept. 23, 1965.

Greenwood, Shiers & Kruse, Leonard W. Kruse, Port Orchard, for appellants.

Conniff, Harper & Taylor, Port Angeles, for respondent.

HUNTER, Judge.

This is an action on a claim against the estate of a decedent for the reasonable value of services rendered and expenses paid in his behalf during the last three years of his life. Plaintiffs (appellants) are James and Beatrice Jacobs, husband and wife. The defendant (respondent) is Elizabeth A. Brock, executrix of the estate of the decedent, Dr. Harry M. Brock, who was a retired Port Angeles dentist.

Mrs. Jacobs' acquaintanceship with Dr. Brock dates back to the depression years of the '30s, when her parents, the Rands, rented a house from him. The tenancy lasted seven to eight years, and the Rands paid a monthly rental of $12.50 in services, as follows: Mrs. Rand did the family washing for Dr. and Mrs. Brock, including the washing for Dr. Brock's dental office, which he operated in his home; her sons gathered wood for the Brocks' furnace, and Mrs. Jacobs, then a schoolgirl, kept house for the Brocks. The Rands moved during the late '30s, and for the next 20 years Mrs. Jacobs saw little of the Brocks. She made several visits to the Brock home and stopped to give Dr. Brock a ride whenever she saw him walking home from downtown Port Angeles. Mrs. Brock died in the early '40s, and thereafter, Dr. Brock lived alone.

In November, 1958, during one of Mrs. Jacobs' infrequent visits, she found Dr. Brock recovering from pneumonia and quite ill. Thereafter, and until his death February 7, 1962, she cared for him an average of four hours a day. In those three years Dr. Brock was racked with illness. He was unable to control his bladder, and in late 1960 he suffered a stroke. In the last year of his life he suffered from diarrhea, and a month before his death he underwent a urinary operation, following which he was bedridden. Mrs. Jacobs provided Dr. Brock intensive care during this month-long period. Among her duties, she was required to give him daily enemas.

Mrs. Jacobs served as Dr. Brock's nurse, housekeeper, and, occasionally, his provider during the three years. She did his washing in her own home, a task both monumental and unpleasant considering his elimination difficulties. (He wore diaper-type pads which required frequent changing.) She on occasion purchased food and other items for him with her own funds, prepared his meals, canned food for him, started the furnace, cared for his six cats, kept house, took him on various automobile excursions, shaved him and trimmed his toenails. Dr. Brock requested services by telephone, as often as twice a day.

At Dr. Brock's request, Mr. Jacobs expended a minimum of 26 hours in performance of odd jobs for decedent during the three years preceding decedent's death. These tasks included furnace, electrical and plumbing repairs, and cutting and hauling of wood at Dr. Brock's nearby Lake Crescent cabin.

The only gratuity Dr. Brock bestowed upon the Jacobs was the use of his lake cabin. Most of the furnishings in the cabin belonged to the Jacobs, but they rarely used the cabin for their own purposes. Mrs. Jacobs took decedent there frequently. The Jacobs never used the cabin more than a week at a time, and even on those occasions, Mrs. Jacobs remained in town to care for decedent.

The Jacobs never submitted a bill for services to Dr. Brock, but Mrs. Jacobs did expect compensation. She testified that she and decedent had a mutual understanding that the lake cabin was to be hers in return for the services. However, by terms of decedent's will, executed in 1956, the lake cabin and the bulk of the estate went to a great, great niece, Harlene Brock. This eventuality precipitated this suit.

The plaintiffs alleged four claims in their complaint: (1) For specific preformance of an express or implied contract in which decedent had promised to either make an inter vivos conveyance of his lake cabin to plaintiffs or devise it to them, in return for their services: (2) or, in the alternative, for $11,540.53, the reasonable value of services rendered and expenses paid by plaintiffs in decedent's behalf, and at his request, during the three years preceding his death (for which a claim had been filed in the estate, and rejected); (3) that defendant executrix be ordered to produce and carry out a will memorandum which Mrs. Jacobs alleged had devised to her the lake cabin; and (4) for the return of plaintiffs' personalty at the lake cabin.

At the close of plaintiffs' evidence the trial court granted defendant's motion to dismiss, as to claims one through three. Defendant conceded the validity of the fourth claim and returned the lake cabin personalty to plaintiffs. Plaintiffs conceded a failure of proof on their first claim, for specific performance, and consented to its dismissal. Plaintiffs did not assign error to dismissal of their third claim. The will did incorporate a memorandum by reference, but the memorandum was never found.

Plaintiffs contend that the trial court erred in dismissing claim number two, for reasonable value of services rendered and expenses paid in decedent's behalf. It therefore becomes the sole claim before us on plaintiffs' appeal from the dismissal. Plaintiffs urge that an implied contract in fact existed for payment of such services and expenses. It is plaintiffs' contention that their evidence proves such a contract.

In granting a dismissal at the close of a plaintiff's evidence, as in this case, the trial court is not required to consider the evidence most favorable to the nonmoving party, as in a jury case. The trial judge, as a trier of the facts, may or may not weigh the evidence. Before considering the testimony introduced we must then determine what the trial court did in this instance. In Richards v. Kuppinger, 46 Wash.2d 62, 278 P.2d 395 (1955), we laid down the rule for making this determination:

'In determining whether the trial court has weighed the evidence or has treated plaintiff's evidence as true, and has given him the benefit of the most favorable inferences to be drawn therefrom, this court looks first to the trial court's oral or memorandum opinion. O'Brien v. Schultz, (45 Wash.2d 769), 278 P.2d 322; Grichuhin v. Grichuhin, (44 Wash.2d 914), 272 P.2d 141. If the trial court's opinion discloses that it treated plaintiff's evidence as true and held, As a matter of law, that plaintiff has not established a Prima facie case, findings of fact are unnecessary. In such case, our review of the evidence is limited to determining whether there is sufficient evidence or reasonable inference from the evidence to establish a prima facie case for plaintiff. * * *' (Italics ours.)

In examining the trial court's oral opinion we find nothing that indicates the testimony of the witnesses was disbelieved, or that the trial court weighed the evidence. To the contrary, it appears the motion for dismissal was granted on the ground that treating the plaintiffs' evidence as true it was insufficient to establish a prima facie case. We thus may review the record to determine whether there is sufficient evidence or reasonable inferences therefrom to establish a prima facie case for plaintiffs. Richards v. Kuppinger, supra.

The trial court entered limited findings in its order of dismissal and concluded from the record that a reciprocal course of conduct of kindness and favors was extended between the decedent and the plaintiffs for many years and that the decedent, therefore, was not incurring a financial obligation by accepting the plaintiffs' services. If such a reciprocal course of conduct is supported in the record, then plaintiffs will be unable to prove an implied contract in fact. See Johnson v. Nasi, 50 Wash.2d 87, 309 P.2d 380 (1957); Johnson v. Suddreth's Estate, 59 Wash.2d 517, 368 P.2d 907 (1962).

It is the plaintiffs' contention that the record does not support reciprocal conduct and that no services were furnished by the decedent to the plaintiffs which were of any substance in this case. We agree. We have heretofore detailed the facts as to the favors extended by the decedent. The only evidence showing a benefit running from the decedent to the plaintiffs was that the decedent had afforded the plaintiffs the use of his lake cabin, which was rarely visited by them. The defendant's answer affirmatively alleges reciprocal conduct on the part of the decedent, but there is no evidence in the record to support the allegation. The furnishing of the house to Mrs. Jacobs' parents in the '30s for a monthly rental of $12.50 was paid through the rendering of household services to the Brocks. Even if considered in the nature of a gratuity extended to the Rands, such did not run to the Jacobs. Thus, the trial court erred in concluding from the record that reciprocal benefits existed. The benefits flowed in one direction--from plaintiffs to decedent.

Having concluded that there were no reciprocal benefits, the issue remaining for our determination is whether the record will support plaintiffs' contention that an implied contract in fact existed to pay the reasonable value of plaintiffs' services and expenses. The guidelines for making this determination are well established in this state:

In Johnson v. Suddreth's Estate, supra, we stated:

'The rule governing the disposition of this appeal is succinctly set forth in Johnson v. Nasi, 50 Wash.2d 87, 91, 309 P.2d 380, 382 (1957):

"A party seeking to establish a claim against an estate for services rendered to the decedent during his or her lifetime has the burden of proving a contract, express or implied, to pay for the services; and the evidence to support such claim must be clear, cogent, and convincing.

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