Liebaart v. Hoehle's Estate
| Decision Date | 04 January 1938 |
| Docket Number | No. 24319.,24319. |
| Parties | LIEBAART v. HOEHLE'S ESTATE. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.
"Not to be published in State Reports."
Proceeding by Minnie Liebaart against the Estate of Christian Hoehle, deceased. From a judgment for plaintiff in the circuit court, on appeal from the probate court, the executor, representing the estate, appeals.
Affirmed.
George F. Johnson, of St. Louis, for appellant.
Clarence F. Wescoat and Vincent D. Gallo, both of St. Louis, for respondent.
This action was commenced in the probate court of the city of St. Louis by Minnie Liebaart, respondent plaintiff, as a demand against the estate of her father, Christian Hoehle, deceased. A trial in the probate court without a jury resulted in an allowance in the sum of $4,560 in favor of plaintiff against the estate of said deceased and an order of the probate court placing it in the fifth class.
The executor representing the estate duly appealed to the circuit court of the city of St. Louis, where there was a trial de novo before the court and a jury, which resulted in a verdict and judgment in favor of plaintiff and against the estate in the sum of $4,320. The defendant estate has brought the case to this court by appeal.
Plaintiff's demand is as follows:
To board, lodging and laundry
furnished Christian Hoehle, deceased
at his special instance
and request, from the ..... day
of November, 1914, to November
21, 1933, at $40.00 per
month ......................... $9,120.00
Credit on account at $20.00 per
month .......................... 4,560.00
_________
Balance due claimant ............ $4,560.00
Defendant contends that its peremptory instruction in the nature of a demurrer to the evidence, offered at the close of plaintiff's case and at the close of the whole case, should have been sustained. This assignment necessitates a review of the evidence.
Plaintiff testified that she resided at 4245 Bingham avenue in the city of St. Louis, Mo., and had lived there for over 20 years; that her father, Christian Hoehle, the deceased, was close to 87 years old at the time of his death, which occurred on November 21, 1933, in St. Louis, Mo.; that he was survived by one daughter and three sons; that the deceased owned the home on Bingham avenue and they had lived there continuously since 1915; that witness had two daughters, Marie, 26 years old, and Bernice, 17 years old, both single. Plaintiff further testified that her husband died in September, 1931, but that she and her two children continued to reside at the Bingham avenue home; that her claim runs from September, 1915, and not from November, 1914, as set out in her demand; that the claim is for $40 per month for board, lodging, and laundry furnished to her father from September, 1915, to the day of his death; that the credit of $20 per month allowed in the claim was for the use of his place, or, as she supposed, for her right to live in that home.
Mrs. Louise Westhof, plaintiff's cousin, testified that she had visited plaintiff about once a week for the past 17 or 18 years; that she knew plaintiff furnished board, lodging, and laundry to the deceased, and that she always took care of him; that witness would say to the deceased: "Minnie (meaning plaintiff) surely is good to you, she does an awful lot for you," and he would say: "Yes, she is, but she will be rewarded"; that the deceased would make statements of that character on almost every visit of the witness; that plaintiff would make eggnog or other nourishing drinks for the deceased, cooked to please him, and made soup for him almost every day. On cross-examination the witness testified that she did not hear the deceased say how plaintiff would be rewarded, nor that he was paying her $20 for board, lodging, and laundry.
Mrs. Henry Basel testified that she frequently visited the Bingham avenue home during a period of about 20 years; that the deceased often said that Minnie had done everything for him and that she would be rewarded for that some time; that she sure was one good girl and he would never forget. The witness further testified that plaintiff waited on the deceased for whatever he wanted, prepared drinks for him, cooked his meals and did the laundry work for him, and that he had a room in the house in which he slept. The witness said that the deceased used the German word "bezohler," which a juror by consent of counsel, translated to mean either "reward" or "pay." On cross-examination the witness testified that the deceased did not mention $40 a month or any other sum that he would pay plaintiff; that plaintiff did not ever tell the witness that plaintiff was to get $40 a month for services to her father; that the statements of deceased were not made in plaintiff's presence.
Henry Basel, husband of Mrs. Basel, the preceding witness, testified that on one occasion the deceased said to him: "Minnie will never miss out; she is going to get her share." Such statement of the deceased was not made in the presence of plaintiff.
Mrs. Anna Burnette testified that she had known plaintiff for about 12 years and visited her on an average of once a week; that the deceased didn't have any teeth and that plaintiff always had to cook extra food for him so that he could eat it; that plaintiff did his laundry work, waited on the deceased and was always very good to him; that witness told the deceased how good his daughter was to him, and he said: ; that the deceased told witness that during the 3 years that plaintiff wasn't living with him his son Louis and Louis' family were staying there with him, but that his daughter-in-law would not cook for him and he preferred his daughter; that the deceased told witness that after his wife died he asked plaintiff to come and keep house for him but that she moved away on account of her husband's employment; that he did not like the way his son and daughter-in-law treated him and had asked plaintiff to move back; that the deceased liked to have his home-baked bread but that his daughter-in-law didn't furnish it. On cross-examination the witness testified that the deceased told her that he would not forget Minnie and wanted her to have the majority of what he had left; that he did not mention any specific amount which he was going to pay plaintiff, nor did he state that he had paid Minnie any specific amount for what she had done for him; that on one occasion plaintiff told the witness that her father always made the impression that he would leave her the home.
Ilias Hay testified that during the past 20 years he had been a neighbor living next door to the Hoehle home on Bingham avenue; that during all that period he knew plaintiff had furnished lodging, room, and board for her father.
William Strobel testified that he visited the Bingham avenue home about once a week since 1918, but the deceased came to his house as often as two or three times a week; that plaintiff furnished the deceased with board, room, and plenty to eat and kept him very good, nice, and clean; that on one occasion the deceased visited witness at his home shortly after witness had an accident, and the witness stated to the deceased that he guessed he would have to soak his home or give his home to his daughter, and that deceased said: "Well, I guess I have to do the same thing with my Minnie," referring to plaintiff. On cross-examination the witness said plaintiff was not present when the deceased made the statement quoted; that the deceased did not say that he was paying plaintiff any specified amount but that he did say he would reward her very well, "or in other words pay her very well." The witness never had any conversation with plaintiff with reference to any such payment.
Mrs. Pauline Miller testified that she had known plaintiff since 1919; that when she visited the home plaintiff "always sat a lunch and served her father drinks." The witness, who conducted a boarding house, being asked her opinion as to the reasonable value of the board, laundry, and lodging furnished to the deceased by plaintiff, answered that she couldn't say what plaintiff did for her father, but that she, the witness, was receiving $10 a week from a gentleman for the best room in her house; that she did the gentleman's washing and ironing and gave him his meals; that a married couple occupied a large room in the rear of her home for which they gave her $15 a week; that she did their washing and ironing and gave them their meals; that she thought the charge of $10 a week was reasonable for the services rendered by plaintiff to her father and for board and lodging.
Marie Liebaart, plaintiff's daughter, testified that from September, 1915, on her mother furnished her grandfather with room, board, and laundry; that she, the witness, had started to work when she was 14 years old and had been turning in her salary to her mother ever since she had been employed; that her mother used such money to buy the supplies for the household; that in 1932 the grandfather said that witness' mother would own that home some day; that no one else was present when the conversation took place; that her mother fixed bath water for her grandfather, furnished him with meals and toddies, and helped him in every way she possibly could continuously from 1915 up to the date of his death; that her grandfather had a special room in the front end of the house; that when her mother went to visit friends she always got back in a hurry because the grandfather liked to have witness' mother back again.
Joseph M. Watawa testified that he knew the deceased for 18 years and saw him about once every...
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