Kitch v. Moslander

• Decision Date: 19 October 1943
• Docket Number: 17078.
• Parties: KITCH v. MOSLANDER.
• Court: Indiana Appellate Court

50 N.E.2d 933

114 Ind.App. 74

KITCH v. MOSLANDER.

No. 17078.

Appellate Court of Indiana, in Banc.

October 19, 1943

Kitch & Huff, of Plymouth, Reed & Reed, of Knox, and Walter R. Wise, of Plymouth, for appellant.

McKesson & Kizer, of Plymouth, for appellee.

DOWELL Judge.

This was an action on a claim for personal services filed by appellee, Jane Moslander, against the estate of Charles Moslander, deceased, of which estate the appellant, Don F Kitch, is administrator de bonis non. The claim was for services as housekeeper alleged to have been performed throughout a continuous period of time from the month of February, 1906, to the month of August, 1940, during which last named month and year Charles Moslander died.

The cause presents some unusual aspects, and for this reason we must devote considerable attention to its history.

The original claim was filed, disallowed and advanced to the trial docket after which it was tried to a jury. At the conclusion of the evidence the court below directed a verdict for the defendant estate. An appeal to this court resulted in a reversal. Moslander v. Moslander's Estate, 1941, 110 Ind.App. 122, 38 N.E.2d 268. Thereupon appellee claimant below, amended her claim and the same was retried to a jury upon a change of venue, the result being a verdict in the sum of $16,321.75 in her favor with judgment accordingly. This second appeal is by the defendant estate.

The decedent, Charles Moslander, and the appellee, Jane Moslander, were married in the early 1890's and lived as husband and wife until December 1905, during which time two children were born to them, Grace and George. Appellee, prior to the marriage, had one child of her own who later assumed the Moslander name and lived as one of the family. On December 13, 1905, appellee and decedent were divorced and lived apart. After a short interval, however, Jane Moslander returned to decedent's household and, without re-marriage, lived there continuously, according to certain testimony, with decedent, and the children up to the date of decedent's death in 1940, during which time she cooked for the family, washed their clothing, milked and tended cows, cared for the poultry and performed other work and labor in and about the home and farm some of which was and is ordinarily considered as mens' chores, such as chopping wood and some corresponding to work commonly performed by a household servant.

The record discloses that during this period of time the financial condition of the decedent improved considerably so that his net assets increased from $4,000 in 1905 to $55,000 in 1940, the year of his demise.

After Charles Moslander's death, appellee consulted a law firm regarding her claim and contracted with them to prosecute it for the consideration of a sum equal to thirty-three and one-third (33 1/3%) of all moneys and property recovered in her behalf as the result of their efforts. Accordingly, they prepared and filed the claim, went to trial, and, being unsuccessful therein, brought the appeal which resulted in reversal, following which they obtained a change of venue and prosecuted the re-trial to a successful conclusion. Their work in appellee's behalf covered a period extending from December 12, 1940, to July 2, 1942 (not including the time spent on this present appeal), during which time they prepared pleadings, argued motions and demurrers, held conferences and presumably spent considerable time in the research and other work ordinarily incident to a matter of this nature.

Up to the 11th day of June, 1942, appellee was actively pressing the prosecution of her cause, but on said date, which was only four days prior to that first assigned to the re-trial she accompanied her daughter, Grace, to Denver, Colorado, informing her attorneys of her intention so to do only a few hours before departure but directing them to proceed with the trial in her absence, saying that, since she was incompetent as a witness, her absence could make no difference.

The record contains suggestions, as well as evidence, that Grace Moslander was exceedingly averse to her mother's proceeding with the prosecution of her claim from the beginning; that she stated on at least one occasion during the first trial that she would have to testify against her mother. According to a declaration of appellee herself, made to one of her attorneys, Grace Moslander frequently informed her that if she did not "drop" the case she, Grace, would take the witness stand and testify that appellee and decedent had slept in the same bed. Appellee further declared: "They are continually trying to get me to drop the case--there is no peace at all." Appellee at this time was well past 70 years of age.

After the departure of daughter and mother for Denver appellant declared that Grace Moslander was a necessary witness in his behalf. This proving true the trial was continued, on his motion, until July 1, 1942, in order to allow time for taking her deposition. Pursuant to notice thereof one of appellee's attorneys proceeded to Denver for the purpose of being present when the deposition was taken but on arrival was informed that it would not be taken. According to appellee she informed the attorney at that time that she intended to "drop" the case and he, thereupon, returned to Indiana.

Upon the opening of the trial no motion to dismiss was filed or presented. The jury was empaneled and sworn and appellee's attorneys proceeded with her case in chief. After they had rested their case and before the defense had opened the appellee appeared in court with her daughter and an attorney for the appellant and orally informed the court that she desired a dismissal. The record is not clear as to the trial court's action at this time upon the verbal motion, if it can be so called, but from what follows we infer that it either was tentatively overruled or disregarded. The daughter was then sworn as appellant's first witness and by her the defense identified and attempted to introduce in evidence appellant's exhibit A which purported to be a release executed by appellee on June 29, 1942, the day before the trial. Its companion exhibit B, not then but later disclosed to the court, was a written motion to dismiss executed by appellee on the same date.

After sustaining the objection of appellee's attorneys to the introduction of the first mentioned exhibit the court recessed until the following day in order that the court might hear evidence on the question for its own information without the presence and hearing of the jury. Prior to the commencement of this hearing appellee's attorneys filed with the court a voluminous affidavit setting out the facts of their employment and other facts substantially as herein set out and further asserting fraud and imposition upon themselves by their client which they alleged was the result of undue influence and harassment upon and of her practiced by her daughter who was one of the two heirs of the decedent. At this hearing appellee testified and repeated her verbal request for dismissal. At the conclusion of the testimony, however, the court overruled the oral motion to dismiss whereupon appellant filed his exhibit B. Appellee's attorneys filed a motion to strike the exhibit which was by the court sustained. The jury then being recalled the trial resumed with verdict and judgment resulting as hereinbefore set out.

So much of appellant's assignment of errors as is not waived consists of (a) the overruling of appellee's motion to dismiss (b) the striking out of appellant's motion to dismiss, and (c) the overruling of the motion for a new trial.

The motion for new trial contains twenty-eight specifications of which those numbered 1, 2, 4, 14, 16, 18, 19, 20, 21 and 23 will be treated as waived by reason of appellant's failure to discuss same in that portion of his brief headed Propositions etc., and we will consider same only as it becomes necessary because of the close interrelation between them and others properly presented.

The principal question here involved appears to be upon the propositions regarding the trial court's action with respect to dismissal.

At the trial of this cause nine witnesses testified in appellee's behalf. Appellee, during this time, was not personally present, but could have been. The record discloses that she had refused an offer by one of her attorneys to bring her to court in his automobile. Prior to the empaneling of the jury and up to the conclusion of her case in chief, she made no effort before the court to dismiss her cause. The record itself admits of only one conclusion in this regard, that the first intimation of her actual intention to dismiss received by the trial court or her attorneys came when she appeared suddenly in court at the conclusion of her case in chief and made known her desire. Moreover it was disclosed at the hearing for the court's information that one of her attorneys had called upon her on the previous evening and was in no wise informed that she had executed exhibits A and B. It was on this occasion that she refused the offer of transportation to court, saying that her daughter had agreed to bring her. Testimony of the appellee at this hearing also revealed that no consideration whatever was received by her in return for her release but that one of the appellant's attorneys came with some papers for her to sign, that he did not read them to her, but she signed same notwithstanding. She later admitted, however, that she knew what they were. Her daughter Grace was present at the time. How the appellant's attorney was apprised of appellee's readiness and willingness to execute the documents is not made known by the record.

We must agree with appellant that it is the general rule that a plaintiff...