Lippman v. Tittmann

• Decision Date: 08 May 1888
• Parties: LEWIS LIPPMAN, Appellant, v. EUGENE C. TITTMANN, Administrator, etc., Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 69

LEWIS LIPPMAN, Appellant, v. EUGENE C. TITTMANN, Administrator, etc., Respondent.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

Appeal from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Reversed and remanded.

G. M STEWART, for the appellant: The only question which the court has to consider in this appeal is, whether the testimony adduced by the plaintiff tended to prove any fact which should have been submitted to the jury. We claim that the evidence offered and admitted very clearly tended to show (1) That the appellant was under no legal or moral obligation to support the deceased; (2) that he did expect compensation for his support and education and expenditures which he incurred for him. The plaintiff did not stand in the relation of loco parentis to the deceased. A guardian of the person and curator of the estate of the deceased was appointed by this court about 1870 or 1871, who held that position and sustained that relation so long as decedent lived. This appointment passed the full control and custody of the deceased to the guardian. Rev. Stat., 1879, sec. 2578. The appellant was under no legal obligation to support him; had no legal control of him in any way; had no right to his wages, and was not liable for his support. There was no adoption of him by appellant. Sharkey v. McDermott, 16 Mo.App. 80. Mr. Lippman could at any time have refused to give the boy shelter, food, or clothing; could have refused to have nursed him during his last illness, or have given his body burial, and he would have violated no legal or moral obligation which he owed to the boy, nor would he have become liable to any other person who might have performed these offices for the deceased. The case must rest on these propositions, viz., (a ) Were the charges which are made by the appellant for necessaries? (b ) Did the appellant, Mr. Lippman, intend when so supplying the infant with these necessaries, to charge him or his estate for the same? That the charges made in this case were for necessaries will not, we apprehend, be disputed: his board, lodging, schooling, medical attendance, nursing, etc. That these were necessaries does not admit of argument. Did Mr. Lippman intend to charge for these necessaries or be compensated therefor? If there was any evidence tending to show this, then the case should have been submitted to the jury. Folger v. Heidel, 60 Mo. 384; Trainer v. Turnbull, 141 Mass. 527; S. C., 25 Am. Law, Reg. 695, with notes; State ex rel. v. Sleven, 6 S.W. 68.

SMITH & HARRISON, for the respondent: Mr. Lippman stood in the relation of loco parentis to the child. The plaintiff's evidence clearly showed that he voluntarily received the infant into his home as a member of his family without any intention of charging him for support and maintenance; and what was originally intended by him as a gratuity could not subsequently be turned into a charge. One cannot maintain a claim against the estate of an infant for care and support of such infant, where the testimony shows that such claimant voluntarily assumed the relation of loco parentis towards such infant without consulting his guardian and curator as to such care or support, or the necessaries to be supplied. Academy v. Bobb, 52 Mo. 357; Folger v. Heidel, 60 Mo. 284; Whipple v. Dow, 2 Mass. 418; Allen v. College, 41 Mo. 309. The relation of loco parentis having been established, the burden of proof was on the plaintiff to show a contract, express or implied, that he was to receive compensation. The law will not imply a contract in such circumstances, the relation of the parties repelling the presumption which would otherwise arise. Wharton on Contracts, sec. 719, and cases cited; Cowell v. Roberts, 79 Mo. 218, 221; Guenther v. Birkicht, 22 Mo. 439, and cases cited; Bank v. Aull, 80 Mo. 199, 202; Morris v. Barnes, 35 Mo. 412.

OPINION

ROMBAUER P. J.

Mrs. Ballentine died in 1866, leaving four surviving children of tender age. Her husband Alexander, being unable to take care of them, three of the children were placed in a charitable institution, and the fourth, who is the decedent, Wm. Ballentine Becker, then a child in arms, was taken into the family of Wm. Becker, and reared as a child of that family. Thereafter Alexander Ballentine, the father, was killed in a railroad accident, and Wm. H. Thompson was appointed guardian of the persons and curator of the estate of the four children. As such guardian he recovered four thousand dollars, in the year 1870, from the railroad company, being one thousand dollars for each of the children. This appears to have been their only estate. He acted as such guardian and curator until the three other children arrived at age, and then accounted to them as such. The residue of the share of Wm. Ballentine Becker, he paid to the defendant administrator, after the decedent's death in 1886.

Wm. Becker died in 1878, leaving a family of children. The plaintiff, a friend of the family, thereupon took Becker's children into his custody, including Wm. Ballentine Becker, and reared them all as members of his own family. There was at no time any express contract between the plaintiff and the curator Thompson, as to any compensation which the plaintiff was to receive for the rearing and maintenance of Wm. Ballentine Becker, nor did the plaintiff at any time prior to the year 1881 suggest to the curator the question of compensation.

In March, 1881, the plaintiff's financial condition having become materially changed, he approached the curator stating such fact, and requesting that he make some allowance for the support of the child, and the curator thereupon gave him one hundred and fifty dollars, out of money of the child in his hands. He paid to him like amounts in August, 1882, in June 1883, in ...