Kingston v. Roberts

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1042
• Parties: KINGSTON v. ROBERTS.
• Court: Missouri Court of Appeals

157 S.W. 1042

KINGSTON v. ROBERTS.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 221) — CLAIMS — SUFFICIENCY OF EVIDENCE.

In an action against the administrator of plaintiff's stepfather for the value of board furnished the stepfather, evidence held sufficient to make a question for the jury as to whether there was a mutual agreement or understanding that the board was to be paid for.

2. WORK AND LABOR (§ 7) — SERVICES BETWEEN PERSONS IN FAMILY RELATION.

Where plaintiff and her stepfather, after the death of plaintiff's mother, continued to live in the mother's house, which plaintiff inherited, a family relation existed between her and her stepfather, and there was a prima facie presumption, subject, however, to rebuttal, that services rendered by her in boarding the stepfather were rendered gratuitously.

3. WORK AND LABOR (§ 7) — SERVICES BETWEEN PERSONS IN FAMILY RELATION.

The prima facie presumption that services between persons in a family relation were rendered gratuitously cannot be overcome by the loose declarations of the person benefited, expressing appreciation or gratitude, but may be overcome by direct testimony, or by facts or circumstances justifying the inference that it was the understanding and intention of both parties that the services should be paid for.

4. EXECUTORS AND ADMINISTRATORS (§ 451) — CLAIMS — TRIAL — INSTRUCTIONS.

In an action against the administrator of plaintiff's stepfather for the value of board furnished the stepfather, where there was no evidence to overcome the presumption that services rendered by the stepfather for plaintiff were rendered gratuitously, it was not clear that he rendered services of any consequence, and there was nothing to show that any such services were rendered in compensation for the board, it was proper to refuse an instruction that, even though plaintiff rendered valuable services with the intention and understanding that she would be paid therefor, yet, if deceased rendered plaintiff valuable services in an amount equal to the services rendered by plaintiff, and as a remuneration therefor, plaintiff would not be entitled to recover.

5. TRIAL (§ 253) — MISLEADING INSTRUCTIONS.

In an action against the administrator of plaintiff's stepfather for services rendered the stepfather, where plaintiff relied on evidence justifying the inference that it was the understanding and intention of both parties that the services should be paid for, an instruction that she could not recover except upon proof of an express contract was properly refused as likely to mislead the jury.

6. WITNESSES (§ 372) — CROSS-EXAMINATION — SCOPE AND EXTENT.

On the trial of a claim against the estate of plaintiff's stepfather, a question asked plaintiff's physician, who was her principal witness, on cross-examination as to whether he had been paid for his services rendered plaintiff for the purpose of showing that he had an interest in the outcome of the suit, on the theory that plaintiff would be unable to pay his bill unless she recovered, was improperly excluded as immaterial, since great latitude should be allowed on cross-examination in asking questions otherwise irrelevant, and it is permissible to test the credibility of a witness by questioning him with respect to his interest, motives, inclinations, and prejudices.

7. APPEAL AND ERROR (§ 971) — REVIEW — DISCRETIONARY MATTERS.

While the appellate court does not ordinarily review the action of the trial judge in the exercise of his discretion in limiting the cross-examination of a witness, if the right of cross-examination is unduly restricted and arbitrarily limited, it is error.

8. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

The exclusion of a question asked plaintiff's principal witness on cross-examination as to whether he had been paid for services rendered plaintiff, for the purpose of showing an interest in the suit, on the theory that plaintiff would be unable to pay unless she recovered, was not reversible error under Rev. St. 1909, § 2082, providing that the Supreme Court or Courts of Appeal shall not reverse a judgment unless it shall believe that error was committed materially affecting the merits of the action, where other questions asked for the purpose of testing his credibility and showing his motive in testifying as he did were admitted and the right of cross-examination was not otherwise restricted.

Appeal from Circuit Court, Pike County; B. H. Dyer, Judge.

Action by Matilda Kingston against George Roberts, administrator of Fred Roberts, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

J. E. Pew and R. A. May, both of Louisiana, for appellant. Pearson & Pearson, of Louisiana, for respondent.

ALLEN, J.

This action was begun in the probate court of Pike county by plaintiff, respondent here, exhibiting the following demand against the estate of Fred Roberts, deceased to wit: "To boarding, nursing, darning, mending, washing, ironing and taking care of Fred Roberts, deceased, for five years prior to his death, to wit, March 29, 1910, at $4.50 per week, $1,060.00. To last three weeks' illness at $10.00 per week, $30.00. Total, $1,090.00." Upon appeal from the probate court, the cause was tried de novo in the circuit court of Pike county, before the court and a jury, resulting in a verdict for plaintiff for $1,060. Judgment was entered accordingly, from which the defendant administrator has appealed to this court.

Plaintiff, Mrs. Matilda Kingston, is a stepdaughter of deceased, who married her mother many years prior to the period of time here involved. Plaintiff's mother died some 15 years before this action was begun, but during her life, after her marriage to deceased, she, deceased, and plaintiff lived together as one family in a house belonging to the mother, in Louisiana, Mo. After the mother's death, plaintiff, who inherited the home, and the deceased continued to live together in this house. The evidence shows that plaintiff treated the deceased as though he were her own father, and that he in turn seemed to have a fatherly regard and affection for her. The deceased was a cabinet maker by trade, had a little carpenter shop, and did little odd jobs of carpentering. He owned a house from which he received rents, and also drew a pension.

In support of plaintiff's claim one D. M. Pearson, a physician, testified that he knew deceased during his lifetime, and also the plaintiff, Mrs. Kingston; that he was the plaintiff's physician for about 10 years; that deceased lived with plaintiff for some 10 or 12 years prior to his death; that the witness had been at plaintiff's home quite frequently, and that deceased ate and slept there, and made his home with plaintiff; that the witness had had several conversations with deceased in regard to his staying there with plaintiff; that plaintiff complained to him about "Mr. Roberts not helping her and not making money," and that he had tried to have deceased turn over to the plaintiff the property from which deceased drew rents so as to help plaintiff financially, and that deceased promised so to do; that the latter "claimed that he was going to pay her. He said, `I am going to pay her,' but he always claimed he was hard up. And Mrs. Kingston asked me to use my influence to get him to pay her."

It does not appear from the evidence that deceased paid plaintiff any board. There is some evidence to the effect that he sometimes purchased supplies for the house; and, on the other hand, there is evidence tending to show that such purchases were made with money supplied by plaintiff, or that such supplies were purchased upon plaintiff's credit. We need say nothing as to the testimony concerning plaintiff's claim for "nursing, darning, mending, washing, ironing, and taking care of" deceased, as the court by its instructions withdrew from the consideration of the jury everything except plaintiff's claim for board. There is some testimony to the effect that deceased helped plaintiff with certain household work, but there is other testimony that he was not at home a great deal. It appears that deceased was quite fond of beer, sometimes drank to excess, and frequently remained out late at night, rising very late the next morning. There is considerable testimony in the record to the effect that plaintiff made various efforts to have the deceased convey to her the property which he owned, or devise it to her by will.

At the close of plaintiff's case defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court, and at the close of all of the evidence a like instruction offered by defendant was likewise refused. And it is earnestly insisted by appellant that plaintiff failed to make a case entitling her to go to the jury, and that the demurrer to the evidence should have been sustained.

I. That the family relation existed between plaintiff and deceased is, under the evidence, beyond all dispute. And where such relation exists it is well established that the law implies no promise to pay for services rendered by one member of the family to another, or for maintenance provided by one member thereof for another. On the contrary, the presumption is that such services are rendered, or such maintenance is provided, gratuitously. In Hartley et al. v. Estate of Hartley, 155 S. W. 1099, recently decided by this court, and not yet officially reported, the court speaking through Nortoni, J., said: "Ordinarily, among strangers, where one renders valuable services to another, which he receives and appropriates, the law presumes they are to be compensated; but where the close family relation appears, as here, this presumption does not obtain. Indeed, in such cases, the presumption goes to the effect that the services so rendered are gratuitous, and that the member of the family performing them does not expect to charge therefor,...