Lauf v. Wiegersen
| Decision Date | 29 April 1929 |
| Docket Number | 16578 |
| Citation | 17 S.W.2d 369 |
| Parties | LAUF et al. v. WIEGERSEN. |
| Court | Kansas Court of Appeals |
Rehearing Denied May 20, 1929.
Appeal from Circuit Court, Cooper County; Henry J. Westhues, Judge.
“ Not to be officially published.”
Action by John Lauf against Frank Wiegersen, administrator of the estate of John Wiegersen, deceased, revived in the name of H P. Lauf and another, executors, after the death of plaintiff. Judgment for plaintiffs, and defendant appeals. Affirmed.
Irwin & Bushman, of Jefferson City, and W. V. Draffen, of Boonville, for appellant.
N. G Sevier, Dumm & Cook, H. P. Lauf, and Ira H. Lohman, all of Jefferson City, for respondents.
This is an action upon an account against the estate of John Wiegersen for board, lodging, and room furnished decedent for a period of four years and six months at 75 cents per day, and for expenses in taking him to various doctors and elsewhere between the years 1919 and 1924. The demand was originally filed in the probate court of Cole county, Mo., and is as follows:
The Estate of John Wiegersen, Deceased, to John Lauf, Debtor, April 30th, 1924.
To board, lodging and room from September 20th, 1919, to March 20th, 1924, four years and six months, at $.75 per day (1,584) days
To expenses for taking John Wiegersen to doctors at Latham, Westphalia, Jefferson City, and other places between September 20th, 1919, and March 10th, 1924
There was a judgment in the probate court in plaintiff’s favor from which defendant appealed to the circuit court of Cole county, where the cause was tried de novo, and a judgment was returned in favor of plaintiff for $875; whereupon an appeal was taken to this court and the judgment was reversed, and the cause remanded. Lauf v. Wiegersen, 297 S.W. 79. Before the case was tried the second time in the circuit court, a change of venue was taken to the circuit court of Cooper county, where it was tried, and plaintiff recovered judgment in the sum of $800. Timely motions for a new trial and in arrest were overruled, and defendant has again appealed.
Facts disclosed by the record are that Frank Wiegersen administrator of the estate of John Wiegersen, is a brother of the decedent; that since the trial in the circuit court of Cooper county, plaintiff John Lauf has died and the action has been revived in the name of H. P. Lauf, executor, and Martha Lauf, executrix, of the estate of John Lauf. It further appears that, some 25 or 30 years ago, John Wiegersen was in the employ of John Lauf; that Wiegersen left said employment and was thereafter employed by various people; that about September, 1919, he became at least partially unable to do manual labor, went to the home of John Lauf to live, and remained there until March 22, 1924, when he died at John Lauf’s home. The testimony in behalf of the parties as to the extent of John Wiegersen’s ability to do manual labor is conflicting. On plaintiff’s behalf it is to the effect that, during almost the entire period of his stay at the home of Lauf, Wiegersen was unable to do any great amount of useful manual labor; that he was given a separate room in the Lauf home; and that he fared at the table as did the Lauf family. In defendant’s behalf the testimony tends to show that Wiegersen did some chores and on a few occasions, at least, he shucked some corn, hoed potatoes, and did other chores.
Evidence in plaintiff’s behalf further tends to show that John Wiegersen, during the period from 1919 to 1924, was a sick man; that he was being treated by various physicians and took medicines; that he visited various doctors during that period; and that he was taken to them by John Lauf, or his son. One physician diagnosed his case as cancer of the stomach, and another as anæ mia, but all seem to have agreed he had a serious stomach ailment. It is in evidence that in 1919 John Wiegersen was 65 years of age. He was a single man and had never married. That while in the home of John Lauf he was furnished a room and board is not disputed. The point in issue is, Was such service rendered by Lauf with the belief and understanding on his part that it was to be paid for by Wiegersen, and was it accepted by the latter with the understanding that it was to be paid for?
In plaintiff’s behalf, Martha Lauf, daughter of John Lauf, when asked if John Wiegersen ever made a statement to her in regard to paying her father for his services and room and board, replied: ’ She testified she heard him say that.
Frank Lauf, another of plaintiff’s witnesses, testified that John Wiegersen told him that "whoever takes care of anybody that is sick ought to be well paid." Steve Lauf, another witness for plaintiff, testified as follows on cross-examination:
"Q. About Frank Wiegersen-his brother?
A. Yes, he said he didn’t care for him noway.
Q. How?
A. He said Frank Wiegersen didn’t care for him.
Q. And ‘Those that take care of me shall be well paid’?
A. Yes, sir.
Q. You have testified before in this case, haven’t you?
A. Yes, sir.
Q. I will ask you if this wasn’t your testimony, I will read verbatim from it, ‘Wasn’t your father standing there with you?’ Didn’t you testify before-A. (interrupting). It is so long ago I don’t remember, but I don’t think I did.
Q. And your father said, ‘John, you stay up here, and I will get the cows’-do you remember that? (No response.)
Q. ‘I talked with him about paying dad, in the week time and we was feeding hogs, and John said to me, "I am done passed in this world, I aint fit for anything," and he said, "My brother aint caring for me," "and these people," the Lauf people, "shall have pay for taking care of me."’
A. Yes, sir; he said that.
Q. Didn’t you just now say he said, ‘Those that take care of me shall have pay-be well paid’?
John Siebenick, for plaintiff, testified as follows: "He (John Wiegersen) was telling me he had a good home, and they treated him fine, and I told him then, I says, ‘Well,’ I says, ‘You want to remember them too,’ and he said, ‘They should have their share,’ he said." And there is other testimony of record to the same effect.
There is also testimony in behalf of plaintiff showing that 75 cents to $1.50 per day was a reasonable charge for board and room, and that 10 cents per mile is a reasonable charge for the use of an automobile. The testimony is that Wiegersen was taken to the doctors by Lauf in the latter’s automobile, and the demand asks for an allowance for this service.
In behalf of defendant the testimony is to the effect that Martha Lauf, a daughter of deceased, John Lauf, asked some neighbors to persuade John Wiegersen to come and live at the Lauf home; but this was denied by Martha Lauf. And the testimony further tends to show that this information was communicated to Wiegersen and soon thereafter Wiegersen went to live at the Lauf home. It is also in evidence that, during a short portion of the period from 1919 to 1924, Wiegersen stayed at the home of a niece, Mrs. Reilly, in Jefferson City, at which time he consulted Dr. Aldrich, on whose advice Wiegersen had all his teeth extracted. Defendant concedes that during John Wiegersen’s stay at Lauf’s home he was not well, by any means, but that he was "always up and about," except for several spells of illness, and did chores around the place, milked cows, pitched hay, hauled manure, plowed corn, ground corn, shucked corn, and did feeding. Also on the part of defendant there is evidence that at one time Wiegersen lent Lauf $800, for which Lauf executed his note, which he paid to the administrator after the death of Wiegersen. On this point plaintiff’s testimony tends to show that Wiegersen did not want the note, but that Lauf insisted on giving it so as to show the money was borrowed. That transaction was a business one, as evidenced by the fact of the payment of the loan to the administrator of Wiegersen’s estate. It is suggested by defendant’s counsel that there is no testimony of record that Lauf ever expected any pay from Wiegersen.
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