Miller v. Smith

• Decision Date: 13 July 1925
• Docket Number: No. 15339.,15339.
• Citation: 275 S.W. 769
• Parties: MILLER v. SMITH
• Court: Missouri Court of Appeals

275 S.W. 769

MILLER v. SMITH

No. 15339.

Kansas City Court of Appeals. Missouri.

Rehearing Denied June 29, 1925.

July 13, 1925.

Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.

"Not to be officially published."

Action by Thena Miller against Joe N. Smith, administrator pendente lite of the estate of Louisiana Plummer, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Dumm & Cook, of Jefferson City, for appellant.

Ira H. Lohman and W. C. Irwin, both of Jefferson City, for respondent.

ARNOLD, J.

This is an action to recover for services alleged to have been rendered by plaintiff to Louisiana Plummer during the lifetime of the latter. The facts show that plaintiff was a niece of decedent, and that they lived near each other hi Cole county, Mo. It appears from the record that plaintiff was a legatee under the will of Mrs. Plummer to the extent of $500, and that other nieces and nephews also were legatees under the will.

The petition alleges that from about September 1, 1915 to January 31, 1922, Louisiana Plummer employed plaintiff to do housework, washing, nursing, and other household duties, and that she expressly promised and agreed to pay plaintiff for such services; that during this period, and at the request of Mrs. Plummer, plaintiff performed said services. The petition states the reasonable value of such service was $30 per month, and that the services were performed for a period of 77 months. Judgment against said estate is asked in the sum of $2,310.

The answer is a general denial. The cause was tried to a jury, resulting in judgment for plaintiff in the sum of $1,250, and defendant appeals.

The record discloses: That William Plummer and Louisiana, his wife, lived on a small farm near the old town of Bass in Cole county. That William Plummer, for a number of years, was justice of the peace. That he and his wife were old, and, while they may have been in the usual state of health for persons of their years, they were not able to perform and did not perform all the duties incident to farming and housekeeping. Part of the farm land was leased to others and some labor was employed on the rest. Mrs. Plummer did the lighter part of the housework, but employed help for the heavier work such as housecleaning, washing, and ironing. Plaintiff states in her petition that she was employed to do, and did, this heavier work during the period therein stated. Plaintiff lived her husband and their family of children a distance of 2½ to 3 miles from the Plummer home. There was a telephone connection between the two places, and Mrs. Plummer would call plaintiff to come to her home and perform the duties above mentioned. Plaintiff would remain at said work sometimes all day, at other times for a day or two, and occasionally for a week at a time.

During the period covered by plaintiff's claim, there came to live at the Plummer home, as one of the family, one Karr, an old gentleman, a brother of Mrs. Plummer. The testimony tends to show that Mr. Karr at times was unable to control his physical functions; that plaintiff was required to do, and did, his laundry work, together with the Plummer laundry. There is evidence that on rare occasions Mrs. Plummer would call plaintiff to come, when, for some reason, she was unable to do so, and would send her daughter, who was about 15 years old, who did the work required; that on one or two occasions Mrs. Plummer gave the girl a dress and at one time gave her $1.50 in money; that at tithes she also gave plaintiff a dress and perhaps a small amount of money.

It is shown that on various occasions Mrs. Plummer said to others, and perhaps in the presence of plaintiff, that she intended to see that plaintiff was well paid for her work and care for her and the family. It is shown that Judge Plummer preceded Mrs. Plummer in death, and that soon after his death Mrs. Plummer had a fall which disabled her to the extent that she was a great care; that she never fully recovered from this injury and soon followed her husband in death. There was evidence tending to show that plaintiff's ministrations and labor, as above detailed, extended over the entire period stated in the petition.

Mrs. Plummer's estate was administered upon, and plaintiff filed her demand for remuneration against the same, as set out in the petition.

It is first charged that the court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to plaintiff's evidence, and again at the close of all the evidence. In the consideration of a demurrer, the evidence of plaintiff must be taken as true, together with all reasonable intendments relative thereto. This rule is elementary, and has been so often declared that citations in support of it are unnecessary. In passing upon this phase of the case, it is necessary to refer somewhat to the evidence.

The evidence tends to establish these necessary elements in support of plaintiff's demand: (1) Plaintiff lived in her own home at a distance of 2½ to 3 miles from the Plummers, and no family relationship was shown; (2) an expressed promise and desire to pay; (3) that plaintiff expected to be paid. With these elements established, it must be held that plaintiff made out a prima facie case, and the instruction in the nature of a demurrer was properly overruled. This point was covered in detail by this court in the recent case of Brunnert v. Estate of Boeckmann, 258 S. W. 769, and cases therein cited.

Passing to the second division of this charge of error (i. e. that the court erred in refusing defendant's instruction in the nature of a demurrer at the close of all the evidence), this charge implies that defendant's evidence...