Jaycox v. Brune

• Decision Date: 09 December 1968
• Docket Number: No. 2,No. 53056,53056,2
• Citation: 434 S.W.2d 539
• Parties: Joe (J. N.) JAYCOX, Appellant, v. Leona R. BRUNE, Administratrix of the Estate of Myrtle F. Reeves, Deceased, Joseph V. Reeves, Audrey Rawl, Maleta Kuhn, and Leona R. Brune, individually, Respondents
• Court: Missouri Supreme Court

Page 539

434 S.W.2d 539

Joe (J. N.) JAYCOX, Appellant, v. Leona R. BRUNE, Administratrix of the Estate of Myrtle F Reeves, Deceased, Joseph V. Reeves, Audrey Rawl Maleta Kuhn, and Leona R. Brune individually, Respondents.

No. 53056.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1968.

Marvin L. Dinger, Ironton, William E. Seay, Salem, for appellant.

Robert L. Carr, Potosi, for respondents.

EAGER, Judge.

This is an appeal by the plaintiff from a judgment for all defendants in a two-count suit. The action was against the Administratrix of Myrtle F. Reeves, her surviving spouse, and three daughters. The first count was an action to enforce a supposed oral contract to make a will in plaintiff's favor, leaving to him deceased's real and personal property if he 'would look after her health and affairs and take care of her for the remainder of her life.' The second count, filed in the alternative, sought recovery of $29,280 for services rendered to the deceased. Mrs. Reeves concededly owned real estate in Reynolds County aggregating some 700--800 acres, and also certain livestock and personal property. The services were rather specifically itemized, and the claim covered a period of from January, 1959, to the death of Mrs. Reeves on January 22, 1965. The first count was dismissed on motion of the defendants at the close of plaintiff's evidence; at the close of all the evidence the Court sustained the motion of the individual defendants to dismiss Count II as to them; it then took the issues on that count under advisement as to the Administratrix. It later rendered judgment in her favor and filed a memorandum opinion. Plaintiff's motion to set aside the judgment or grant a new trial was overruled by lapse of time and this appeal followed in due course.

Myrtle F. Reeves, who died in Reynolds County on January 22, 1965, at age 72, had lived in St. Louis with her husband until perhaps the late 1930's. She moved to Reynolds County and lived the rest of her life on land which she owned there. Her husband continued working in St. Louis until the latter part of her life, but came to the farm more or less regularly for varying periods and, it is said, did considerable work there. The plaintiff, when about 17 or 18 years of age, went to live at the home of Mrs. Reeves on the farm; it is not entirely clear whether this was at the time she came to Reynolds County or not but, in any event, he remained there until her death, a period of approximately 27 years. He was her second cousin. He apparently did no work of any consequence away from the farm and home and thus had no outside income. He was furnished lodging, food and clothing, Supposedly by Mrs. Reeves, but through all the years he was paid no salary or wages. The evidence indicates that Mrs. Reeves paid various expenses for him, including insurance premiums, substantial payments on a tractor which he purchased, medical expense, subscriptions to magazines, and perhpas small amounts of cash and expenditures on a car which he supposedly owned in the later years. There was a possible inference that plaintiff was in some sort of a partnership with deceased on all or a part of the cattle, but this is not clear. In the view we take of the case it will be unnecessary to detail the services which plaintiff performed. The trial court stated in its memorandum that he rendered long and valuable services and the record fully justifies that statement. Much of the testimony was consumed in particularizing these services on the one hand and belittling them on the other. There was substantial evidence of much work done by him both in the household and on the farm throughout the period in which he lived with Mrs. Reeves. During Mrs. Reeves' later years he performed almost continuous household and nursing services with occasional help from her three daughters, none of whom lived in the home. Mr. Reeves was also of some help later in the period. It was stated, more or less incidentally, that plaintiff was subject to epilepsy, but no details were developed.

Plaintiff, as appellant, makes three points in his brief: (1) that the Court erred in admitting in evidence a release; (2) that it erred in admitting exhibits consisting of several groups of checks; and (3) that it erred in overruling plaintiff's motion for a jury trial 'because appellant was entitled to a jury trial as to the matters in Count II of his petition.' Thus, plaintiff does not dispute here the propriety of the Court's action in dismissing Count I. We have, however, examined the evidence in detail, and find that there was no substantial evidence of an agreement by the deceased to make a will in plaintiff's favor. We need not review either that evidence or the authorities which require strict proof of such a cause of action. Collins et al. v. Harrell et al., 219 Mo. 279, 118 S.W. 432. The order and judgment of the Court dismissing Count I is affirmed. Since the case is being remanded, however, the judgment thereon should be held in abeyance pending the final conclusion of the whole case.

In the answer, defendants denied all of plaintiff's substantive allegations, some generally and some specifically; they alleged a 'blood relationship' between plaintiff and deceased and also alleged that he was furnished or given more than the value of his services; they denied that there was any contract or agreement to pay him; and affirmatively pleaded a release in writing, made for a valuable consideration, attaching a copy to the answer. We note that the plea of a 'blood relationship' was not an effective plea of the existence of a 'family relationship' as defined and described in our cases. Plaintiff filed no reply. Defendants requested a separate hearing on the issue of the release, but none was granted. Plaintiff filed, prior to the trial, a motion for a jury trial, calling attention to defendants' plea of a release, to Supreme Court Rule 69.01, V.A.M.R., and also to fact issues concerning: (1) any agreement to make a will; and (2) whether, generally, plaintiff was entitled to be compensated for services performed. That motion was overruled several weeks before the trial. This question has caused us much concern and we are constrained to say that we have been required to research and decide it without any substantial assistance from the briefs; this has also been true of other substantive questions.

We need cite no authority to support the proposition that plaintiff was not entitled to a jury on Count I, unless the Court chose, in its discretion, to call an advisory jury. It did not do so, and that concludes that question. (We shall hereafter drop the Roman numerals used by plaintiff.) Count 2 was an action for a money judgment involving factual issues, and plaintiff would normally have been entitled to a jury trial. Mo.Const.Art. I, § 22(a), V.A.M.S.; § 510.190 RSMo 1959, V.A.M.S. ¹ We have no indication of the reason why the trial court denied the motion; we assume that it was because the first count sounded in equity. It has often been said that if equity jurisdiction attaches 'full and complete adjustment of the rights of all parties will be properly made in the suit.' 27 Am.Jur.2d, Equity, § 19, p. 541; Davis v. Forrestal, 124 Minn. 10, 144 N.W. 423, L.R.A. 1915F, 1012; Smith v. Hendricks, Mo.App., 136 S.W.2d 449. In Goldman v. Ashbrook, Mo.App., 262 S.W.2d 165, this principle was construed to mean that a plaintiff must establish his equitable cause of action both by pleadings and evidence before the Court may, in equity, proceed to consider and grant relief which would otherwise be legal; or, in other words, that the equity jurisdiction must first attach both under the pleadings and the proof. In Pomeroy's Equity Jurisprudence, Fifth Ed., Vol. 1, § 237d. it is stated: 'The doctrine that equity, having once become possessed of a cause, will retain it for the purpose of administering full and complete relief, does not apply when the facts relied on to sustain the equity jurisdiction fail of establishment.' There sundry cases are cited. In Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231, a suit for the specific performance of a contract to sell real estate, the Court said at loc. cit. 654, of 20 S.W.2d: 'It is the general rule that equity, having once become possessed of a cause, will retain it for the purpose of administering full and complete relief; but that principle ordinarily does not apply when the facts relied on to sustain the equity jurisdiction fail of establishment.'

See also 19 L.R.A.,N.S., 1065, annotation, where the general rule is stated as follows: 'Although a few cases are found which can be characterized only as variants from the general rule, the preponderance of opinion in relation to the subject under consideration clearly seems to be that where a case for relief in equity fails, a court of equity is without jurisdiction to award other relief by way of disposing of the entire controversy; unless, indeed, it appears that the remedy at law will be inadequate. Otherwise, as the courts have frequently pointed out, a litigant, by a pretended claim for equitable relief, might deprive his opponent of advantages incident to an action at law.' In Miller v. St. Louis & K.C.Ry. Co., 162 Mo. 424, 63 S.W. 85, the Court said in part, loc. cit. 87: 'Appellant contends that its answer converted the whole case into a suit in equity, and that the court erred in submitting any of the issues to a jury. In support of that contention appellant refers to the familiar principle that, where a court of equity has jurisdiction of a case for any purpose, it will not leave it to be sent unfinished to another court, but will dispose of all the issues, even if some of them be such as, if standing alone, are triable only in a court of law. * * * But there must exist in the facts of the case some equity upon which it exercises it peculiar jurisdiction in part relief. If, when it comes to consider the case,...