Johnson v. Gaugh's Estate, 18573

• Decision Date: 02 March 1955
• Docket Number: No. 18573,18573
• Citation: 124 N.E.2d 704,125 Ind.App. 510
• Parties: Walter E. JOHNSON, Appellant, v. The ESTATE of Ida M. GAUGH, Deceased; Cecil Carmichael and Paul Vermillion, Co-Administrators, Appellees.
• Court: Indiana Appellate Court

Page 704

124 N.E.2d 704

125 Ind.App. 510

Walter E. JOHNSON, Appellant, v. The ESTATE of Ida M. GAUGH, Deceased; Cecil Carmichael and Paul Vermillion, Co-Administrators, Appellees.

No. 18573.

Appellate Court of Indiana, In Banc.

March 2, 1955.

[125 Ind.App 511] Jerrald O. Finney, C. D. Rotruck, Anderson, for appellant.

Harold J. Anderson, Ralph F. Mattingly, John D. Staggenburg, Anderson, for appellees.

KELLEY, Chief Justice

Appellant filed his first amended claim against appellees for specified services of the alleged reasonable value of $45,000 allegedly performed by appellant for the decedent, Ida M. Gaugh, and her husband, George Gaugh, now deceased, from August, 1946 to March, 1951.

The claim, denied by appellees' statutory answer, was submitted to a jury for trial. At the conclusion of appellant's evidence, the court, upon appellees' motion, directed a verdict for appellees. Upon the jury's verdict in favor of appellees, the court rendered consonant judgment.

Appellant assigns as error the overruling of his motion for new trial. His second assignment charging error in directing the verdict for appellees is also contained in his motion for new trial and will be considered with the other specifications in said motion.

The motion for new trial contains 9 specifications, but in view of the conclusion we have reached it is necessary to consider only specifications 2 and 3.

Said specifications 2 and 3 may be considered together and count upon alleged error of the court 'in directing the jury to return a verdict for defendant at the conclusion of plaintiff's evidence herein.' The peremptory instruction, if any, is not found in the record. Appellees, in their brief, state that 'this instruction was in writing * * *'. Appellant, in his reply brief, says: 'The instruction to the jury was oral. * * * There was no means of identifying * * * the instruction except that employed by appellant in his new trial motion.'

The pertinent part of the order book entry, as shown by the transcript, is as follows:

'The defendant's motion for directed verdict dictated to the reporter, and the motion is sustained. The jury is directed to find for the estate. The jury returns in open court the following verdict, 'We the jury find for the estate''.

Rule 1-7 provides, in part: 'The court's action in directing or refusing to direct a verdict shall be shown by order book entry. Error may be predicated upon such ruling or upon the giving or refusing to give a written instruction directing the verdict.' (Our emphasis.) Under the stated provisions of said rule, we think that said specifications 2 and 3 of appellant's new trial motion require us to consider appellant's claim and the evidence and permissible inferences tending to sustain it, and thereby determine the correctness of the court's direction to the jury to find for the appellees.

It seems unnecessary at this time to restate the conditions and circumstances under which the trial court may properly direct the jury to find for the defendant. The Supreme Court, in the recent case of Whitaker v. Borntrager, Ind.1954, 122 N.E.2d 734, enunciated and restated, in concise manner and with extensive citation of supporting authorities, the fundamental and well established rules and principles for the guidance of trial courts in determining upon a motion for a directed verdict.

Appellant's first amended claim alleged that from August, 1946 to March, 1951, he performed services for decedent and her husband. The itemized services were: (a) Hauled in coal; (b) Purchased groceries; (c) Put up storm windows; (d) Picked fruit for canning; (e) General labor around home of decedent; (f) Helped decedent care for invalid husband; (g) Served legal papers on tenants of decedent; (h) Repaired and serviced automobile of decedent and her husband.

The claim also alleged, in substance, that claimant was in home of decedent and her husband continuously from the summer of 1946 until the spring of 1951, and that during this period he rendered all the services which they required. It was further alleged that decedent informed and promised claimant that she would give him a sack of jewelry, certain real estate, and make him beneficiary of certain U. S. Bonds. However, a careful examination of the evidence discloses none to support the claim of the alleged promised jewelry, real estate, and bonds.

The record discloses evidence presented by appellant, as follows:

The decedent, Ida Gaugh, died June 21, 1952, and her husband, George Gaugh, predeceased her on March 2, 1950. They were an ederly couple, the evidence, although indefinite, indicating that George was around 80 years of age at the time of his death, and that Ida was a few years younger. Their only heirs were first, second and third cousins. Appellant was born in the immediate neighborhood of the said Gaughs, who lived at 2116 Pearl Street, Anderson, Indiana. They, decedent and her husband, 'spoke very highly' of appellant and 'thought a lot of him.' Mrs. Gaugh repeatedly said: 'Walter (meaning appellant) is my boy.'

Lloyd Rector and Lenora, his wife, lived on a farm, three miles east of Alexandria, Indiana, as tenants of Mr. and Mrs. Gaugh on a 'fifty-fifty' basis from 1944 to March of 1948. During 1946 and 1947 Mr. Gaugh came out to the farm in his automobile to see Mr. Rector about the farm business, usually on Sunday of each week. Mr. Rector testified that Mr. Gaugh did not always drive the automobile himself and when he did not, the appellant brought him out; that appellant drove him out to the farm several different times; that in 1947 the number of times Mr. Gaugh drove out himself and the number of times appellant drove him out were about even; that in 1947 Mr. Gaugh's health failed and Mr. Gaugh was better off with someone driving than doing his own driving; that in 1948, prior to the time Mr. Rector moved in the middle of March, appellant brought Mr. Gaugh out two times that he (the witness) remembered of.

Mr. Rector further testified that in 1947 Mr. Gaugh's failing health affected his ability to do normal work; that he had a heart condition and his feet and legs would swell; that appellant helped Mr. Gaugh in and out of the automobile so that he, Mr. Gaugh, would not fall. Another witness, Gladys M. Layton, testified, by deposition, that she remembered that Mrs. Gaugh said appellant was to take Mr. Gaugh to the farm, and that he did that several times.

Mr. Rector continued to relate that he went to the Gaugh home in Anderson once a month to make the monthly settlement and that one time when he was there, appellant was there and had gotten in the coal and looked after the fires; that in 1947 when he was there (at Gaugh's home) Mr. and Mrs. Gaugh talked about appellant and said that he (appellant) came down evenings and got their coal in and more or less looked after the fires,--'odds and ends, you might say', that needed to be looked after in the evenings.

Mrs. Rector stated, in her testimony, that Mrs. Gaugh told her that appellant got in the wood and coal for them and that in the evenings he (appellant) would come home from work and come over and get in the coal and wood. The witness further said that the Gaugh home consisted of four rooms downstairs and hallway, big pantry off kitchen, serving room, bath room and two rooms upstairs; that to her (witness) knowledge there was no part of said...