Lottinville v. Dwyer

• Decision Date: 24 July 1942
• Docket Number: Nos. 8480-8482.,s. 8480-8482.
• Citation: 27 A.2d 305
• Parties: LOTTINVILLE v. DWYER (three cases).
• Court: Rhode Island Supreme Court

27 A.2d 305

LOTTINVILLE

v. DWYER (three cases).

Nos. 8480-8482.

Supreme Court of Rhode Island.

July 24, 1942.

Exceptions from Superior Court, Providence and Bristol Counties; Robert E. Quinn, Judge.

Assumpsit by Estelle Lottinville, p.p.a., by Regina Lottinville, and by Armand Lottinville against Edward F. Dwyer, as administrator of the estate of Annie McFarland, deceased, for services allegedly rendered decedent. Verdicts for plaintiffs, and defendant brings exceptions.

Judgments directed for plaintiffs on condition of remittiturs.

Eugene L. Jalbert and Valmore M. Carignan, both of Woonsocket, for plaintiffs.

Edward F. Dwyer, of Woonsocket, for defendant.

CAPOTOSTO, Justice.

These are three actions in assumpsit, each based on a claim for services, against the estate of Annie McFarland, late of the city of Woonsocket, deceased. The cases were tried together to a jury in the superior court, and resulted in the following verdicts for the respective plaintiffs: Estelle Lottinville, $1,500; Regina Lottinville, $3,000; and Armand Lottinville, $500. The defendant in each case moved for a new trial on the usual grounds, and on the additional grounds that the verdict was excessive and that there was no evidence in the record which furnished a reasonable basis to support the verdict.

The trial justice, after a hearing, denied the motion in the cases of Estelle Lottinville and Armand Lottinville. In the case of Regina Lottinville, he granted a new trial unless the plaintiff, within five days, remitted all of the verdict in excess of $2,000. A remittitur was duly filed in this case. In each case the defendant has brought to this court a similar bill of exceptions. His exceptions in each of said bills are to the denial of his motions for a directed verdict and for a new trial without condition, and to the refusal of the trial justice to give certain requests for instructions.

The defendant is the duly appointed and qualified administrator of the last will and testament of Annie McFarland. The plaintiffs, Armand and Regina Lottinville, husband and wife, are the parents of Estelle Lottinville, a child twelve years old who lived with them when the contract involved in all these cases was allegedly made with Annie McFarland, then about seventy-five years of age. The Lottinville family and Annie McFarland occupied adjoining tenements for some four years prior to the latter's death on June 5, 1941.

On July 23, 1941, these plaintiffs filed three separate claims against the estate of Annie McFarland for services rendered to her over a period of about four years preceding her death. The defendant administrator disallowed all three claims, whereupon the plaintiffs brought these three separate actions in assumpsit. As stated by the plaintiffs in their brief, their respective claims are "based upon an express promise to pay" under an agreement with Annie McFarland by which "they respectively undertook to hire out their services to the deceased during the remainder of her life, and to wait for their pay until after her death." The amount of their respective compensation for such services was left undetermined.

The material circumstances leading up to the making of the agreement upon which the plaintiffs rely, as testified to by them, are substantially as follows. Before Annie McFarland moved into the tenement adjoining that of the plaintiffs, she lived in a nearby house. When she wanted certain things done, she would call on her neighbors, among whom were Estelle and her father, and always paid trifling sums for such services. As Annie McFarland became more friendly with Estelle, she was attracted by the child's aptitude for drawing and encouraged her in developing that talent. This was the situation about the fall of 1936, at which time Annie McFarland proposed to Estelle an extended plan of hire on deferred payments for the services of herself, her father and her mother, so that in later years Estelle would have enough money to attend an art school. Estelle replied that, while the plan was agreeable to her, she would have to consult her parents. In the evening of the same day when Annie McFarland made such proposal to Estelle, the latter's father and mother went to the former's home, when, according to them, they made the agreement upon which they now rely. Estelle was not present on this occasion.

We note at this point that although Estelle's parents, who are of French extraction, had at times some difficulty in expressing themselves in English, their testimony is understandable. Omitting immaterial details, Regina Lottinville's testimony in direct examination with reference to the agreement is as follows:

"Q. What did she say to you as regards working for her, and how long? A. She asked like that, exactly this way: she said, 'Mrs. Lottinville, you see the way I am. I am not getting any better. I can hardly walk, and my rheumatism—.' I don't know how to say that. She says like that, 'I don't have no idea to move from here just so I could move into your home.' She says like that, 'I could pay you all together until I die. Of course, if you trust me,' she say, you know. She laugh. * * *

"Q. When did she say you would be paid if you agreed to work for her the remaining years of her life? A. 'Until I die', she says. 'I ain't going to live long because the way I am'. * * *

"Q. Now, did you, when she put up that proposition to you and asked you if you would trust her, did you agree, you and your husband, to carry on that way with Estelle? A. Yes, we agreed."

Armand Lottinville testified as follows on this point:

"Q. And what was the substance of the conversation that passed between Annie and yourselves? A. Well, she said to my wife and me if it was all right for us, you know, to work for her and take care of her until she die. She said, 'I am not very old, I am not old—I am old', she said, 'and I don't think I am going to live very long now, so if you want to do, it will be all right', see. So if she trust me—if we trust her. I said O. K.

"Q. Did she say in the course of that conversation when you could expect to be paid? A. Yes. She said, 'I'll pay you when I die.'

"Q. And did you accept that arrangement? A. Yes.

"Q. And what were you, your wife and Estelle supposed to do for her? A. Well, my little girl—

"Q. I mean in a general way. Was it to take care of her? A. Yes. Take care of her, do her work and—.

"Q. Did you suggest any amount? A. No.

"Q. Did she suggest any amount? A. No.

"Q. Why didn't you? A. Well, because we trust her.

"Q. Had you then any idea how long your services would have to run? A. No."

Following their testimony with reference to the agreement, the plaintiffs and their witnesses testified at great length as to the kind and extent of the services that they and each of them performed for Annie Mc Farland. The defendant, who was clearly at a disadvantage in disproving the plaintiffs' claims, brought in a large number of witnesses, neighbors and friends of the deceased, many of whom testified that Annie McFarland never mentioned any agreement with the Lottinvilles to them; others, that she told them that she paid the plaintiffs well; others, that they performed services similar to those claimed to have been rendered by the plaintiffs during the period in question and were always paid for the same; others, that they saw the deceased doing her own housework and washing; others, that the deceased told them she was often alone and had very little to eat; and others, that they never saw any human filth on the floor in Annie's house resulting from her physical condition, which filth, according to the plaintiffs, was commonly thereon. This testimony, and much more of a similar character, was presented by the defendant as tending to show that the claims of these plaintiffs were improbable and unbelievable.

The defendant's first exception is to the denial of his motion for a directed verdict. The contention of the plaintiffs is that it was the intention of themselves and of Annie McFarland to make three separate contracts, and that the agreement, as testified to by them, although entire in form was severable in fact. The defendant, on the other hand, contends that the testimony shows an entire contract which could not be split into three separate causes of action, as the plaintiffs did in these cases. Relying mainly upon this contention, the defendant argues that his motion for a directed verdict should have been granted.

Whether a contract is entire or severable is not always an easy matter to determine. Each case must depend very largely on the terms of the contract. An added difficulty is presented when one has to deal with an oral contract, and this difficulty is further increased when one cannot be certain that the language used in relating the contract is accurate and definite in expression. All these difficulties appear in the cases now before us. Under our well-established rule, which by this time requires no citation of authorities, a verdict should not be directed for a defendant unless the plaintiff cannot recover upon any reasonable view of the evidence. In the instant cases we cannot say that the testimony with reference to the oral agreement itself and the circumstances surrounding the making thereof is so clear and unequivocal as to render its construction a matter of law for the court. The character and terms of such agreement, especially when related by persons not fully acquainted with the English language, are to a certain extent obscure and susceptible of different meanings. The real intention of the parties respecting the agreement was therefore a question of fact for the jury to decide.

The defendant also urges that his motion for a directed verdict should have been granted because there was no evidence of the value of the services rendered by the respective plaintiffs. Our examination of the transcript shows that there is some testimony from both Regina and Armand...