Johnson v. Ranes

Decision Date11 April 1984
Docket NumberNo. A8102-00689,A8102-00689
Citation67 Or.App. 667,680 P.2d 688
PartiesNaomi JOHNSON, Respondent, v. June RANES, Personal Representative of the Estate of E. Pearl Potter, Deceased, Appellant. ; CA A26849.
CourtOregon Court of Appeals

Ben C. Fetherston, Jr., Portland, argued the cause for appellant. With him on the brief were Jeffrey P. Foote, and Haugh & Foote, P.C., Portland.

Jerold L. Billings, Portland, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

NEWMAN, Judge.

Defendant, decedent's personal representative, appeals from a judgment for the value of services to decedent. Plaintiff alleged that, at decedent's special request, plaintiff cared for her from 1974 until her death and that (1) the reasonable value of plaintiff's unpaid services is $25,000 and (2) the agreed value of those services is $25,000. In her answer, defendant denied plaintiff's claims and alleged affirmatively that decedent "made periodic payments to plaintiff and bequeathed to plaintiff $5,000 and an exercycle, all in full payment for plaintiff's services." Defendant also alleged that plaintiff was a volunteer. The jury returned a general verdict in favor of plaintiff for $20,000. We affirm.

In 1972, plaintiff was doing volunteer work for the elderly through the Multnomah County Family Counseling Service and met decedent. Plaintiff was not related to decedent by blood or marriage and was not a member of her family or household. Decedent was ill with multiple sclerosis. Every two weeks for two years plaintiff took her to buy groceries. Plaintiff testified that in June, 1974, decedent took her to the bank, showed her a certificate of deposit for $25,000 and told her:

"If you will take care of me for the rest of my days and see that I am properly buried, I will leave this to you."

Plaintiff testified that for the next six years she did most of decedent's shopping, yardwork and cleaning and used her own car to take decedent to most of her frequent medical appointments. Plaintiff testified that she cared for decedent after several hospitalizations every day for 12 hours a day. As decedent improved, plaintiff reduced the time spent with her to three days a week. She testified that for 15 months, until decedent's death, she fed her through a tube three times a day.

Decedent died in August, 1980. She left her estate of $240,000 principally to charity. Her will, dated April 28, 1980, also provides:

"I give, devise and bequeath the sum of $5,000.00 cash and my exercycle machine to my friend, Naomi Johnson, provided she survives me. My friend, Naomi Johnson, has cared for me. While I have paid her at various times for such care that she has provided me, I hereby make the bequest above described to her in appreciation of her friendship."

Plaintiff filed a claim for $25,000 against decedent's estate, stating:

"I cared for decedent since 1974. Decedent promised to sign over to me her First National Bank $25,000.00 Certificate if I would promise to care for her the rest of her life and if I would promise to see that she was buried in accordance with her instructions. I did promise to and I did care for her for the remainder of her life. I did also promise to see that she was so buried. I was not paid for this except for occasional expenses. The $25,000.00 Certificate was not signed over to me. I also claim a certain diamond ring, a ruby ring and a watch with diamonds which were given to me by decedent and taken from me by the Personal Representative under the belief that these items were a part of the estate."

Defendant allowed plaintiff's claim for the ruby ring but disallowed her claim for $25,000, the diamond ring and the watch. This action followed.

Defendant's first two assignments of error are that the court denied her motions for "a directed verdict," first at the close of plaintiff's case and then at the close of all the evidence. She did not move for a directed verdict separately as to each claim 1 and does not assign as error any ruling on such a motion. Her third assignment is to the same effect--that the court denied her request that it instruct the jury to return "a verdict for defendant and against the plaintiff." Again, defendant did not request an instruction as to each of plaintiff's claims separately 2 and does not assign as error any ruling on such a request.

Defendant relies on ORS 115.195:

"A claim that has been disallowed by the personal representative may not be allowed by any court except upon some competent, satisfactory evidence other than the testimony of the claimant."

The statute means that a claimant must establish a prima facie case with evidence other than her own testimony before the case can be submitted to the jury. Lawrence v. Ladd, 280 Or. 181, 192, 570 P.2d 638 (1977); LaTrace v. Estate of LaTrace, 55 Or.App. 1005, 640 P.2d 703 (1982). The jury may then consider her testimony. Estate of McLain, 126 Or. 456, 463, 270 P. 534 (1928). As stated in Uhler v. Harbaugh, et al., 110 Or. 609, 616, 224 P. 89 (1924):

"It does not follow, where other evidence sufficient to justify a verdict is introduced, that the testimony of the plaintiff is valueless. 'Evidence sufficient to justify a verdict' is one thing, and that which may in effect produce a verdict is another. Having laid a foundation for his recovery by producing evidence upon the strength of which a jury may find a verdict in his favor, the claimant may then buttress and reinforce his case by his own evidence so as to render it more probable that a jury will so find." (Emphasis in original.)

To establish a prima facie case for the reasonable value of her services plaintiff had to show: (1) that she provided decedent with valuable services; (2) that decedent requested the services or acquiesced in their receipt knowing that they were not gratuitous; (3) that there was no express contract to pay for the services; and (4) the reasonable value of the services. The first three elements have to be established by evidence apart from the testimony of plaintiff, but her testimony alone could prove the reasonable value of her services. Littlepage v. Security S & T Co., 137 Or. 559, 560, 3 P.2d 752 (1931); Franklin v. Northrup, 107 Or. 537, 554, 215 P. 494 (1923). Moreover, because payment is a defense, plaintiff did not need to establish nonpayment as part of her prima facie case. Wagner v. Savage as Adm'r, 195 Or. 128, 140, 244 P.2d 161 (1952); Littlepage v. Security S & T Co., supra, 137 Or. at 560, 3 P.2d 752.

Plaintiff did establish a prima facie case for the reasonable value of her services. There was sufficient evidence, apart from plaintiff's testimony, for the jury to find that she provided valuable services to decedent and that defendant requested or acquiesced in the services and knew that they were not gratuitous. Four of decedent's neighbors and plaintiff's husband testified in detail that plaintiff assisted decedent over a six-year period with shopping, cleaning, transportation, feeding and nursing care.

Although decedent's will states that her bequest to plaintiff was made "in appreciation of our friendship," it acknowledges that plaintiff had cared for decedent and that decedent had paid for that care "at various times." Decedent's lawyer testified that decedent had recognized her obligation to pay plaintiff but felt that she was doing so by giving her "a few dollars here and a few dollars there." He testified that he had told plaintiff that decedent had signed a new will that contained a bequest for friendship but did not provide compensation for the care that plaintiff had given. He said that plaintiff indicated that she would continue to care for decedent but wanted a fixed salary. The lawyer testified that, three or four months later, just before decedent's death, he and plaintiff agreed that she would be paid $600 a month to serve as decedent's guardian. The jury could infer from that evidence that decedent approved of the arrangement. She died on the day the agreement was to commence. Defendant also testified that decedent accepted plaintiff's services, knowing they were not free, but that decedent felt that the payments she made to plaintiff from time to time were sufficient. Defendant testified that plaintiff's work for decedent "was first based on friendship but finally became a job." The jury could infer from the evidence, apart from plaintiff's testimony, that her services were valuable and were not rendered gratuitously but with the expectation of compensation and that the disagreement between decedent and plaintiff was over the amount that plaintiff should be paid.

Defendant asserts that ORS 115.195 also requires that the evidence, apart from plaintiff's testimony, show that decedent recognized her obligation by stating to others that she expected to make full compensation. The testimony of decedent's neighbors was that decedent was reluctant to spend money or express gratitude. It was not necessary, however, that decedent have stated that she had a duty to pay plaintiff. There was evidence apart from plaintiff's testimony from which the jury could infer that decedent acquiesced in the services that plaintiff performed and that plaintiff did not render them gratuitously but with the expectation of payment. Accordingly, the law implies a promise to pay for those services. In Re Estate of T.A. Stoll, 188 Or. 682, 696, 214 P.2d 345, 217 P.2d 595 (1950), explained:

"[W]here one performs valuable services for another at his request, and there is no express contract to pay for such services, the law implies a promise on the part of the recipient to pay therefor what the services may reasonably be worth. The implication is said to arise from the recipient's mere acquiesence in the rendition of the services, and the claimant should be permitted to recover under such circumstances, unless the evidence shows that...

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2 cases
  • Wheeler v. LaViolette
    • United States
    • Oregon Court of Appeals
    • July 6, 1994
    ...arising from the surgery, but that does not entitle defendants to a directed verdict on the entire claim. See Johnson v. Ranes, 67 Or.App. 667, 675, 680 P.2d 688 (1984). Reversed and ...
  • Kohler v. Armstrong
    • United States
    • Oregon Court of Appeals
    • August 3, 1988
    ...the promise to pay.5 Plaintiff need not corroborate her testimony concerning the reasonable value of her services. Johnson v. Ranes, 67 Or.App. 667, 672, 680 P.2d 688 (1984). ...

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