McDaniel v. McDaniel

• Decision Date: 14 October 1957
• Docket Number: No. 45542,45542
• Citation: 305 S.W.2d 461
• Parties: Judith McDANIEL, Plaintiff (Respondent), v. Roy B. McDANIEL and Leslie E. McDaniel, Co-administrators of the Estate of Charles T. McDaniel, Deceased, Defendants (Appellants).
• Court: Missouri Supreme Court

Page 461

305 S.W.2d 461

Judith McDANIEL, Plaintiff (Respondent), v. Roy B. McDANIEL and Leslie E. McDaniel, Co-administrators of the Estate of Charles T. McDaniel, Deceased Defendants (Appellants).

No. 45542.

Supreme Court of Missouri, En Banc.

Oct. 14, 1957.

Thurman, Nixon & Blackwell, J. W. Thurman, Jeremiah Nixon and Earl R. Blackwell, Hillsboro, for appellants.

Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for respondent.

HYDE, Judge.

This case ws commenced in the Probate Court of Jefferson County by filing a demand against the estate of Charles T. McDaniel, deceased (claimant's grandfather), for services rendered deceased and his wife, Lillie Mae McDaniel (claimant's grandmother), alleged to have been pursuant to an agreement that claimant (hereinafter called plaintiff) was to be paid for such services. Upon appeal from the Probate Court, the case was tried in the Circuit Court of Jefferson County, resulting in a verdict and judgment for plaintiff for $13,805. The administrators of the estate of Charles T. McDaniel, deceased (hereinafter called defendants) have appealed.

Defendants contend that plaintiff's evidence was insufficient to establish the alleged agreement and say that the Court should have directed a verdict for them. This case was submitted in Division No. 1 of this Court and an opinion written, which was not adopted because the members of the Division were equally divided, and, therefore, the case was transferred to the Court en Banc. (See Sec. 9, Art. V, Const. V.A.M.S.) We have decided that the opinion written in Division accurately stated the facts and correctly ruled defendants' contention concerning the sufficiency of the evidence; and we, therefore, adopt that portion of the opinion hereinafter set out without quotation marks, as follows:

There was evidence tending to show that in the year 1927, Charles T. McDaniel and Lillie Mae McDaniel, his wife, resided on the McDaniel farm near Catawissa. They were the parents of seven living adult children who had left the McDaniel farm, including the son Oscar T. McDaniel, father of plaintiff. During the year 1927 or 1928, the son Oscar brought his three small daughters, Alice, four or five years old; Ruth, three years old; and Judith, one year old, to the McDaniel farm home where the four continued to live until 1943 when the oldest, Alice, left the home, although she returned to visit from time to time until the death of her grandfather, October 16, 1951. The daughter Ruth continued to live at the McDaniel farm until 1945, when she left to accept employment in St. Louis.

The sister Ruth, witness for plaintiff, testified that, although she had married in 1943, she had continued to live in the McDaniel farm home until Judy's graduation from high school in 1945; and that she, Ruth, overheard a conversation between the grandfather and Judy in the living room in the McDaniel farmhouse in May, 1945. The grandfather, Charles T. McDaniel; the father, Oscar T. McDaniel; the sister, witness Ruth; and the plaintiff Judy were all present. Inasmuch as this conversation was particularly relied on by plaintiff in tending to establish her claim we here set out Ruth's testimony, relating to the conversation, in question-and-answer form, as follows,

'Q. Were you there on the farm during the month of May, 1945, about the time of Judy's graduation from high school? A. Yes, sir, I stayed until she got out of school. * * *

'Q. Were you present at a conversation there at the farm between yourself and Judith and your grandfather? A. Yes, sir. * * *

'Q. Will you tell the court and jury what ws said there by your grandfather and by Judy and by yourself? A. I had planned on leaving when Judy got out of school. When Judy got out of school she wanted to leave home too and get a job. We started quarreling over it. I wanted to leave and she wanted to leave. We knew somebody had to stay. Finally, Grandpa asked my father what we were quarreling over. He said, 'Both of the girls want to leave home and get a job.' Grandpa said one of them had to stay. Pop (plaintiff's father) said, 'They both want to get out and earn their own living.' Grandpa said somebody had to stay with Grandma and help take care of her, that they would have to hire somebody if she left and that they needed her. Grandpa told her, he said, 'If she stays they would give her a good deal.'

'Q. Following that conversation did Judy stay? A. Yes, she did. She gave in and she stayed.'

During the years 1945 to 1951 the grand mother, Lillie Mae, was in poor health She had arthritis, erysipelas 'ever so often in the winter months,' and had an ailment of the heart. She had ulcers or open sores on her legs with considerable drainage, and a hernia requiring the use of a truss. The grandfather, Charles T., was not well enough to do much work after 1945, and during the last six months of his life was bedfast. In the last years of his life the grandfather's eyesight was not good. He had to feel his way about the room by using two canes and his food had to be put on his plate. During the period of the last illness of the grandfather, the grandmother 'had a stroke,' although presently she could sit up in bed.

Living conditions at the McDaniel home were primitive. The house consisting of six rooms--two upstairs--was old. Water was drawn by hand from a well, and the laundry was done with a tub and washboard, the water having been heated in a kettle over a fire in the yard.

There was abundant evidence tending to show that plaintiff performed burdensome and disagreeable personal and nursing services to her grandmother (and to her grandfather in his last illness) during the years 1945 to 1951 in addition to household work, such as cooking, washing, canning and preserving. She also tended the garden and the chickens, and milked. Defendants-appellants, administrators, do not dispute the facts of these valuable services which we have only generally stated.

Attending now the contention of defendants-appellants that no substantial evidence tended to support the conclusion there was an agreement or mutual understanding that plaintiff was to be remunerated for her services--we have the opinion that the jury reasonably could infer from the evidence introduced in this case that plaintiff remained in the McDaniel home with the expectation of being paid for her services, that the grandfather Chalres T. intended that she should be paid for her services, and that an agreement existed between them that she was to be remunerated therefor.

Where a family relation exists between a person rendering services and the recipient thereof (such services as were shown in evidence in the instant case), the rule followed in this state is that no promise or agreement that the services are to be paid for is implied from the mere fact that the services have been performed and accepted. Prima facie, the presumption is that such services are rendered gratuitously, casting upon the party claiming compensation therefor the burden of rebutting the presumption. In overcoming the presumption, a claimant must prove either by direct evidence or by evidence from which it may be reasonably inferred that there was an agreement or mutual understanding the claimant was to be remunerated for the services rendered. While mere expressions of gratitude or intended generosity on the part of the recipient are not alone sufficient, a promise to pay may be implied from any facts or circumstances which in their nature reasonably justify the inference of an actual contract of hire or an actual understanding between the parties to that effect. Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 210 S.W.2d 49, and cases therein cited; Ashley v. Williams, Mo.Sup., 281 S.W.2d 875; Chandler v. Hulen, 335 Mo. 167, 71 S.W.2d 752; Vosburg v. Smith, Mo.App., 272 S.W.2d 297; Farris v. Faris' Estate, Mo.App., 212 S.W.2d 71.

The cases cited by defendants-appellants are not decisive here. In Farris v. Faris' Estate, supra, the claim was upon a contract to pay claimant by suitable and adequate provision by will. Not only was the evidence insufficient in tending to establish the express contract as averred, but there was no substantial evidence of a contract on the part of deceased to pay claimant for the alleged services, and on the part of claimant to charge compensation for such services. In Whitworth v. Monahan's Estate, Mo.App., 111 S.W.2d 931, the action, originating in the probate court, was on the express contract to pay plaintiff 'the entire amount of [the] estate' of decedent. In Smith v. Davis' Estate, 206 Mo.App. 446, 230 S.W. 670, the declaration of Davis indicated no more than his intention to bestow a bounty--no evidence supported the fact of a contract to pay. Claimant Smith had merely continued to render services such as are performed by a boy on a farm; moreover, claimant had received property which, assuming there was a contract, was reasonable compensation for the services rendered.

In the instant case, it is conceded plaintiff stood in a family relationship to her grandfather and was a member of the family household. It is also true that she, her sisters, and her father may have received the valuable privileges of a haven and a home when they had come to the McDaniel farm to make it their home in 1927. Yet, there was evidence tending to show that in 1945 plaintiff was desirous of leaving the home for the purpose of seeking employment. She forewent departure from the grandfather's house and remained therein to render the services mentioned, supra. Compare Kopp v. Traders Gate City Nat. Bank, supra. Her grandfather had said that one of the sisters had to stay with the grandmother, and that 'they needed her.' He said, 'If she stays they would give her a good deal.' A jury reasonably could infer that plaintiff, in remaining and performing the services as stated, was relying on what her grandfather had said and performed the stated services in...