Kimball v. Moore

• Decision Date: 29 July 1943
• Docket Number: 28939.
• Citation: 140 P.2d 498,18 Wn.2d 643
• Parties: KIMBALL v. MOORE.
• Court: Washington Supreme Court

140 P.2d 498

18 Wn.2d 643

KIMBALL v. MOORE.

No. 28939.

Supreme Court of Washington

July 29, 1943

Department 1.

Action by Harry G. Kimball against Mary Moore for unlawful detainer of certain residence property. From an order granting a new trial, following a verdict for the plaintiff, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Koenigsberg & Sanford, of Seattle, for appellant.

M. W Vandercook, of Seattle, for respondent.

STEINERT Justice.

This was an action for unlawful detainer of certain residence property. The complaint alleged an oral month to month tenancy, the occupancy thereunder by the defendant, the failure on her part to pay several months' rent, the service of notice upon her terminating the tenancy, the demand by the plaintiff for possession of the property, and the refusal by the defendant to vacate. The answer admitted the present occupancy of the premises by the defendant and the service upon her of the alleged notice of termination of tenancy, but denied generally the other allegations of the complaint, and specifically denied that the occupancy by the defendant was under a month to month tenancy or under any other form of rental agreement. The answer further set forth affirmatively two additional defenses: (1) That the defendant was in possession of the property as a life tenant under an oral agreement with the plaintiff and his deceased wife which agreement, it was alleged, had been fully performed by the defendant; and (2) that the plaintiff could not maintain in his individual capacity alone an action which involved an interest of his deceased wife's estate. Plaintiff's reply put in issue the affirmative defenses.

The cause was tried to a jury, which returned a verdict for plaintiff. The defendant moved for a new trial, basing her motion on five distinct grounds. The trial court granted the motion specifically on two of the grounds: (1) Insufficiency of the evidence to justify the verdict, and because the verdict is against law; and (2) error in law by reason of the court's failure to give certain instructions requested by the defendant. From the order granting a new trial, the plaintiff appealed.

Appellant assigns error on the part of the trial court (1) in granting a new trial upon either of the two grounds specified in the order, and (2) in admitting certain testimony offered by the respondent.

The first branch of the initial assignment necessitates a review of the evidence. There are certain facts about which there is no dispute, and these we shall state first.

Respondent, Mary Moore, was sixty-seven years of age at the time of the trial of this action in 1942. For many years prior to 1938, she and the appellant, Harry G. Kimball, and his former wife, Edith M. Kimball, now deceased, had been close personal friends and lived in the same general neighborhood in the city of Seattle. Respondent was living alone in the fall of 1938 and occupied a room, or suite of rooms, in the home of another woman; the Kimballs resided in a house not far distant. Over the course of years the parties had visited each other frequently, and the respondent had often assisted Mrs. Kimball in her domestic work. The Kimballs, in turn, had manifested in many ways their friendship and solicitude for the respondent because of her age, decrepitude, and loneliness.

Respondent had two small life insurance policies, and, in October, 1938, took, the cash surrender value of one of them in the sum of one hundred fifty dollars and loaned the money to the Kimballs. A short time thereafter, it became necessary for respondent to vacate the room, or rooms, which she was then occupying, and the Kimballs volunteered and undertook to find her a suitable place of abode.

About this same time, the Kimballs entered upon negotiations looking to the purchase by them of the property involved in this action. This property consisted of a five-room house located near the Kimball home.

During the course of these negotiations between the Kimballs and the owner of the property, respondent endeavored to obtain the cash surrender value of her second policy amounting to $109.56, with the view of turning the proceeds over to Mrs. Kimball. It appears that respondent at first had some difficulty in persuading the insurance company to cash the policy, but with the assistance of the Kimballs she finally succeeded in securing the money. When the check for payment arrived, respondent was residing temporarily in the home of the Kimballs, and she thereupon endorsed the check and delivered it to Mrs. Kimball.

On January 4, 1939, the Kimballs completed their negotiations for the purchase of the property here involved by entering into a real estate contract with the owner of the premises. The sale price was sixteen hundred dollars, of which an initial cash payment of fifty dollars was made at the time of the execution of the agreement, and the balance was made payable in monthly installments of twenty dollars for ten months of each year and fifty dollars for the other two months of the year. After the property had thus been acquired, appellant expended some money, time, and labor in reconditioning the house and premises and installing a stove in one of the rooms. When the house was in readiness, respondent was put in possession thereof by the appellant.

About this same time, respondent, through the efforts of appellant, was placed on public relief and received from the King county welfare department the sum of $15.77 a month. Of this amount the department paid $10 each month direct to appellant for the housing accommodations furnished to the respondent. As a part of the arrangement under which respondent was given public relief, the Kimballs agreed in writing 'to take care of her [respondent's] funeral expenses after her death.'

About a year and a half after respondent had been placed on public relief, she was granted an old-age pension, and out of the amounts so received she continued to pay appellant the sum of $10 each month until October or November, 1941. Upon payment of each of these successive monthly amounts to appellant, he issued to respondent a receipt showing that it was 'for rent of rooms' in the property here involved.

In the meantime, on July 12, 1940, Edith Kimball, wife of the appellant, died. The fact of her death is here noted only because many of the conversations concerning which respondent testified upon the trial were had between the two women in the absence of the appellant himself.

Appellant married his present wife, Mabel Kimball, sometime prior to October, 1941, the exact time not being shown by the record. To all appearances, the relations between the appellant and his second wife on the one hand, and the respondent on the other, continued upon the same friendly, as well as business, plane as that which had obtained Before the death of the first Mrs. Kimball.

In the latter part of 1941, appellant had difficulty in keeping up the monthly payments on the real estate contract covering the property which respondent was occupying, and he thereupon sought to have respondent increase the monthly amount which she theretofore had been paying. Respondent refused to pay any greater sum, and appellant thereupon, on December 2nd, served upon her a notice to vacate the premises. Upon her refusal to do so, appellant instituted this action.

Beyond the facts thus far stated, the evidence is in serious conflict. Appellant's evidence, consisting for the most part of the testimony of himself and that of his present wife, was to the effect that the arrangement between the Kimballs and the respondent was simply and solely one whereby appellant rented the property to respondent under a month to month tenancy for ten dollars a month, and that the tenancy had been terminated by the notice to vacate.

Respondent's evidence, consisting solely of her own testimony and that of one disinterested witness, tended to establish a wholly different relationship concerning her occupancy of the property here involved. Their testimony was to the following effect: At the time that the appellant and his first wife became interested in purchasing the property, they did not have the money with which to make the initial cash payment of fifty dollars. They thereupon prevailed upon the respondent to turn in her second life insurance policy and transfer the money to them. This was done upon the agreement that appellant would purchase the property on contract, put it in proper condition for occupancy, and place respondent in possession thereof for the remainder of her life; at the same time, and for the same period, respondent was to pay appellant the sum of ten dollars a month out of the funds derived by her from public relief and later out of her oldage pension. The money which respondent had realized upon her first life insurance policy and thereafter loaned to appellant was in some way absorbed in the general arrangement. Respondent complied with the terms of her agreement and was willing to continue to do so, until appellant sought to increase the amount of her monthly payments. She refused to meet appellant's demands, and insisted upon performance by him of the original terms of the agreement. Thereupon appellant sought to oust her from the premises.

We have not gone into the details of the conflicting testimony, but have given only a general summary of it. Further elucidation thereon is unnecessary other than to say that the evidence submitted by the parties and admitted by the trial court supports the various contentions of the parties and was sufficient to take the case to the jury upon both theories of tenancy.

It is the settled rule in this state that when, in a case involving...