Kuhlmann's Estate v. Poss

• Decision Date: 07 April 1920
• Docket Number: (No. 6354.)
• Parties: KUHLMANN'S ESTATE v. POSS.
• Court: Texas Court of Appeals

220 S.W. 564

KUHLMANN'S ESTATE v. POSS.

(No. 6354.)

Court of Civil Appeals of Texas. San Antonio.

April 7, 1920.

Appeal from District Court, Kendall County; R. H. Burney, Judge.

Suit by Mrs. Eugenia Poss against P. Kuhlmann, administrator of the estate of William Kuhlmann, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Davis & Long and H. B. Cline, both of San Antonio, and F. W. Schweppe, of Boerne, for appellant.

W. A. Wurzbach, of San Antonio, for appellee.

MOURSUND, J.

Mrs. Eugenia Poss sued P. Kuhlmann, administrator of the estate of Wm. Kuhlmann, to recover $1,335, the amount of a claim presented by her against the estate of said Wm. Kuhlmann and rejected by said administrator. The claim consisted of various items, the nature of which will be sufficiently disclosed in discussing the assignments of error. The defendant answered by exceptions, a general denial, and a special answer. The case was submitted on special issues, in answer to which the jury found for plaintiff in sums aggregating $1,238. A remittitur of $40, covering one item, was entered, and judgment entered for the remainder.

Wm. Kuhlmann boarded with Mrs. Poss during the greater part of the 2 years preceding his death, and her suit was to recover for her services in nursing him during several periods, her minor son's services to said Kuhlmann, the use of her shed as a garage for his automobile, the value of two mattresses and pillows, used by said Kuhlmann during his last illness and destroyed on account of their condition, and expense of cleaning the room in which he died.

The plaintiff sued for rent of a garage from March 1, 1917, to December 18, 1918, at a monthly rental of $7, alleged to be a reasonable rental therefor, and the jury found that Wm. Kuhlmann, at the time of his death, was indebted to plaintiff in the sum sued for, for the use of plaintiff's shed. The pleading indicates an express contract. As a matter of fact, no contract, express or implied, was shown to pay plaintiff anything for the privilege of putting his automobile under the cow shed. During all of the 22 months the subject of remuneration for this privilege was not mentioned or hinted at. No excuse was offered for not collecting for use of the shed just as regularly as for board, and it is evident that there was never any intention to charge for this until after Kuhlmann's death. Mrs. Poss and her children benefited by Kuhlmann's ownership of the automobile, as he frequently took them with him when he used it, and Mrs. Poss admitted that he sometimes took her to San Antonio in the automobile. The relations between Kuhlmann and the Poss family were very pleasant. One of the Poss boys referred to Kuhlmann as "Uncle Bill," and it seems that members of Kuhlmann's family were addressed as if related to the Poss family. No claims were asserted until after his death. In addition, the evidence relied on to show the reasonable value of the use of that part of the shed under which the automobile was kept was insufficient to justify a recovery. Bernhard Poss admitted he had never rented a garage in Boerne, nor a shed such as was owned by his mother, and that of his own knowledge he did not know whether it was worth $7, or 7 cents, a month. Testimony concerning what was charged by garages for housing of cars by the day would not tend to prove what the privilege of putting a car under a shed was worth per month.

It was alleged that the estate was indebted to plaintiff for personal services rendered by her minor son, Ferdinand, to Kuhlmann at his request, which were reasonably worth $5 per month, and amounting in the aggregate to $105. The jury found that on this claim plaintiff was entitled to recover for 16 months, at the rate of $5 per month. The testimony of Ferdinand Poss shows that he performed services in driving, greasing, and taking care of Kuhlmann's car, and that it was understood and in fact agreed that such services were not to be gratuitous. He testified that Kuhlmann promised to send him to school or college for his services; but, there being no agreement how long Ferdinand was to perform services, or to what school or college he was to be sent, and for what length of time, it is evident that the minds of the parties never met, so as to create a contract. The services not being performed gratuitously, but with the expectation that they would be paid for, the law implies that the reasonable value thereof would be the measure of compensation. The evidence supports a finding that Ferdinand performed some of the services during 16 months. If the time when Kuhlmann was in Seattle and the time when Ferdinand was sick be deducted, it will still leave 17 months. He did not drive when Kuhlmann was sick, but could have taken care of the automobile though such work may not have been worth much. We...