Kleinberg v. Kinealy
| Decision Date | 05 April 1917 |
| Docket Number | No. 14543.,14543. |
| Citation | 193 S.W. 981 |
| Parties | KLEINBERG et al. v. KINEALY. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
"Not to be officially published."
Proceeding in probate court by Mary Kleinberg and another against James R. Kinealy, administrator with will annexed of the estate of Patrick Heneher, deceased. Judgment for plaintiffs on appeal to the circuit court from an allowance of plaintiffs' claim, and defendant appeals. Reversed, remanded, and rehearing denied.
Wm. B. Kinealy, of St. Louis, for appellant. Wm. L. Bohnenkamp, of St. Louis, for respondents.
This is a proceeding, begun in the probate court of the city of St. Louis, to establish a demand against the estate of Patrick Heneher, deceased, in the sum of $2,167, for services rendered by the claimant, Mary Kleinberg, to the said Heneher during his lifetime. The account filed in the probate court is one in favor of Mary Kleinberg and her husband, Fred Kleinberg, and both are therefore named as plaintiffs in the action. No point is made as to the joinder of the husband; and as the case was tried throughout as though prosecuted by Mary Kleinberg alone, she will be referred to as the plaintiff.
The probate court allowed the claim in full, and the defendant administrator appealed to the circuit court, where, upon a trial de novo before the court and a jury, there was a verdict and judgment in favor of plaintiff for $1,428.50. From this judgment defendant prosecutes the appeal before us.
The account presented to the administrator, and filed in the probate court, consisted of five items. The circuit court withdrew from the consideration of the jury the last three items thereof. Omitting those items the account is as follows:
To nursing the deceased and laundrying and mending his clothes, and performing household work and duties for him as follows, to wit:
To household work from February 22
1894, to March 24, 1899, being 61
months and 2 days, at $20.00 per
month for 61 months................ $1,220.00
Laundrying and mending deceased's
clothes from September 13, 1900, to
June 8, 1912, being 142 months at
$5.00 per month..................... 710.00
The evidence discloses that during the period covered by the first of the two items of the account set out above, and for many years prior thereto, the deceased, Patrick Heneher, and his wife resided in the city of St. Louis where they owned a dwelling house and lot of ground. It appears that when plaintiff was a baby she was taken into the home of Mr. and Mrs. Heneher, who were childless, and reared by them as a daughter, though it seems that they never formally adopted her. Plaintiff could not testify, and the facts relating to her account must be gathered piecemeal from the testimony of a number of witnesses. It is to be inferred that plaintiff seeks to recover from the time when she became of lawful age, but the testimony does not fix this date with any certainty. According to the testimony, plaintiff married in 1896, and from that time until some time in 1900 she and her husband lived in the Heneher home. During that period, to wit, in 1899, Mrs. Heneher died. The evidence is that from plaintiff's marriage to the time of Mrs. Heneher's death the two families lived apart in the same house, plaintiff and her husband supplying their own food and eating at a separate table. The first item of the account includes this period.
In 1900, it is said plaintiff and her husband moved from the Heneher house, where Heneher continued to reside, and remained away until some time in 1912, when they returned and rented the house from Heneher, and he boarded with them until his death in 1913. We are not here concerned, however, with the period subsequent to their return in 1912. It is to be inferred that during the period from 1900 to 1912 plaintiff and her husband lived within a short distance of the Heneher house, though there is no direct testimony as to this. The second item of the account covers this period.
There is abundant testimony as to the character and extent of plaintiff's services, begun in early childhood and extending throughout the period covered by the first item of the account. It appears that Mr. and Mrs. Heneher kept boarders, and that they had a cow, or cows, and raised poultry — chickens and geese — in considerable numbers. Heneher worked in a cemetery, and Mrs. Heneher was an invalid during the latter years of her life. It is said that she was confined to her bed for nine months prior to her death. Plaintiff, for the most part at least, did the housework, and the washing and ironing, and took care of the cow or cows and the poultry upon the place. And it is said that by virtue of plaintiff's services Heneher and his wife realized profits from the business of keeping boarders, and from their cows and poultry, whereby they accumulated sufficient funds to pay off a mortgage on their home. The overwhelming weight of the testimony is that after her marriage in 1896 plaintiff, while living with her husband in the Heneher home, continued to perform the aforesaid services as she had done theretofore. And there is abundant evidence tending to show that after plaintiff and her husband moved from the Heneher home, plaintiff, for approximately 12 years, did the deceased's regular laundry work and mending, washed his bedding, and cleaned his room.
One witness, Mary Conlen, a friend of Mr. and Mrs. Heneher, and who had known plaintiff from babyhood, testified that upon one occasion while visiting at the Heneher home, when plaintiff was 17 or 18 years of age, she said to plaintiff, in the presence of Mr. and Mrs. Heneher, "I never come here that you are not working hard;" that thereupon Mrs. Heneher said, "Well, she is working for herself, and when I die everything shall be hers, but I am afraid that if I go first Mary Ann [plaintiff] won't be treated right;" whereupon the deceased, addressing his wife, in plaintiff's presence, said: Another witness testified that she heard the deceased make a similar statement in the presence of Mrs. Heneher. It does not appear that this was in the presence of plaintiff. After the death of Patrick Heneher, however, in 1913, it was found that he had left a will by which he bequeathed to plaintiff the sum of $1, referring to her as his adopted daughter, and devised and bequeathed all the remainder of his property to a brother.
It is insisted by learned counsel for appellant that the trial court erred in refusing to peremptorily direct a verdict for the defendant administrator.
The defense predicated upon the statute of limitations, interposed and rejected below, we think is without merit. Though the account as filed did not cover the period from March 24, 1899, to September 13, 1900, the evidence is that plaintiff's services were continuous from 1894 to the death of the deceased. They differed somewhat in extent, though not in general character, at different periods, but there was no cessation or break in the continuity thereof. Under the circumstances the account is to be regarded as one continuous open running account. See Bowman v. Shelton, 175 Mo. App. 696, 158 S. W. 404.
The argument advanced in support of the contention that plaintiff, in any event, failed to make out a prima facie case, appears to proceed upon the theory that the services for which a recovery was had were rendered while plaintiff and the deceased were members of the same family. It is true that where the family relation exists, the law presumes that services rendered by one member of the family to another are gratuitous, and casts upon the party claiming compensation therefor the burden of repelling the force and effect of this presumption. See Wood v. Lewis, 183 Mo. 553, and cases cited (loc. cit. 563), 167 S. W. 666; Miles v. Whiteside's Estate, 183 S. W. 340. The burden is cast upon the claimant to prove an agreement to pay for such services, either by direct testimony or by facts and circumstances from which the existence of a mutual understanding and intention to that effect may be legitimately inferred. This doctrine, however, appears to have application only to that period of time covered by the account prior to plaintiff's marriage in 1896, during which time the family relation existed between plaintiff and deceased. After plaintiff's...
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