Kohler v. Armstrong

• Decision Date: 03 August 1988
• Citation: 758 P.2d 407,92 Or.App. 326
• Parties: In re Estate of Alma A. Griffith, Deceased. June L. KOHLER, Respondent, v. Marjorie ARMSTRONG, Personal Representative, Appellant. 87-02-31016; CA A44974.
• Court: Oregon Court of Appeals

Page 407

758 P.2d 407

92 Or.App. 326

In re Estate of Alma A. Griffith, Deceased.

June L. KOHLER, Respondent, v. Marjorie ARMSTRONG, Personal Representative, Appellant.

87-02-31016; CA A44974.

Court of Appeals of Oregon.

Argued and Submitted May 6, 1988.

Decided Aug. 3, 1988.

Wade P. Bettis, Jr., La Grande, argued the cause and filed the brief for appellant.

Carl G. Helm, La Grande, argued the cause for respondent. With him on the brief was Helm, Baum & Riedlinger, La Grande.

Before WARDEN, P.J., and GRABER, J., and RIGGS, J. Pro Tem.

GRABER, Judge.

Defendant is the personal representative of the estate of Alma A. Griffith; plaintiff is Griffith's niece. Plaintiff, who has worked extensively in home health care and has significant experience in nursing, cared for Griffith during the last ten months of her life. Plaintiff seeks to recover on Griffith's alleged promise to pay the reasonable value of her services. The trial court found in plaintiff's favor, and defendant appeals. ¹ We affirm.

Plaintiff testified that she stopped in LaGrande to visit Griffith in January, 1986, while she was between jobs. Griffith had reared plaintiff for several years when plaintiff was a child, and plaintiff called her "Mom." At the time of plaintiff's visit, Griffith was 81 years old and was concerned about her ability to continue to care for herself. She asked plaintiff to stay with her. Plaintiff agreed. In March, when plaintiff was out of money and had an offer of other employment, she told Griffith that she would have to leave. Griffith did not want her to do so and promised that, if she would stay, Griffith would pay her from a veteran's pension when Griffith received it. ² Plaintiff remained and cared for Griffith until she died in October, 1986.

Plaintiff's testimony, if believed, is sufficient to support the trial court's judgment. Defendant's argument on appeal is that plaintiff did not corroborate her testimony with independent evidence, as ORS 115.195 requires:

"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 requires that there be independent evidence sufficient to go to the trier of fact on the denied claim. Evidence that merely corroborates some details but does not in itself constitute a prima facie case is insufficient. Lawrence v. Ladd, 280 Or. 181, 570 P.2d 638 (1977).

In this case, the strongest evidence for plaintiff is her own testimony. However, her daughters provided additional evidence. One daughter, Carrie Jo Black, testified about the work her mother did for Griffith. ³ About a week before Griffith's death in October, Black and Griffith argued about getting plaintiff some relief from the constant burden that Griffith's deteriorating condition imposed. Griffith at first opposed a substitute caregiver and said, according to Black, "Mom would be getting paid for this." Earlier, in May or June, Griffith talked with Gail Lynn Hatch, another of plaintiff's daughters. Hatch testified:

"We were, like I said, visiting. [Griffith] told me how much she appreciated that my mother was there. And she realized that my mother could leave her and go to Seattle or come to Joseph and get a job where she would be paid. She said to me, 'But, that's okay, honey. She'll be paid. She'll get her money. She will be paid.' "

Defendant insists that the daughters' testimony is inadequate. Defendant points to the presumption that services rendered to a close relative are gratuitous, Lawrence v. Ladd, supra, 280 Or. at 194, 570 P.2d 638; Franklin v. Northrup, 107 Or. 537, 215 P. 494 (1923), and to cases holding similar statements to be inadequate. See, e.g., Lawrence v. Ladd, supra; LaTrace v. Est. of LaTrace, 55 Or.App. 1005, 640 P.2d 703 (1982). Every case, however, depends on its particular facts. In both Lawrence and LaTrace, for instance, the plaintiffs had lived with the decedents in long-term non-marital relationships, taking on the traditional responsibilities of a housewife long before the decedent became ill. In Lawrence, the decedent's statements looked toward a future will in which he would leave the plaintiff his property because of the entire relationship, not as payment for services rendered. In LaTrace, the decedent's statement that the plaintiff would be paid for her services may well have referred to her remainder interest in the house in which the decedent had a life estate; the plaintiff had received that interest some years before, when she and the decedent were divorced.

In contrast to those cases, and to others that defendant cites, the circumstances here do not show a long-term caregiving relationship or a gratuitous caregiver. Plaintiff's usual occupation was in-home care, and she was normally paid for her services. She had not lived with Griffith for some years before moving in with her in January, 1986. Although the relationship between plaintiff and Griffith gives rise to the presumption that...