Minor v. Lillard, 45144

• Decision Date: 12 March 1956
• Docket Number: No. 45144,No. 2,45144,2
• Parties: J. Robert MINOR, Administrator With Will Annexed of the Estate of Nellie Prentice, Deceased, Plaintiff, v. Elizabeth D. LILLARD, Administratrix of the Estate of Nellie Ellison, Deceased, Defendant
• Court: Missouri Supreme Court

Page 1

289 S.W.2d 1

J. Robert MINOR, Administrator With Will Annexed of the Estate of Nellie Prentice, Deceased, Plaintiff, v. Elizabeth D. LILLARD, Administratrix of the Estate of Nellie

Ellison, Deceased, Defendant.

No. 45144.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 9, 1956.

Henderson & Boulwar, Shelbina, Earl L. Veatch, Monticello, for appellant.

Bollow, Crist & Oswald, Shelbina, J. Andy Zenge, Jr., Canton, for respondent.

BARRETT, Commissioner.

This action originated when Mrs. Nellie Prentice, now represented by her administrator, filed a demand in the Probate Court of Lewis County against the estate of Miss Nellie Ellison. The Probate Court of Lewis County and the Circuit Court of Shelby County, upon change of venue, allowed the demand in the total sum claimed, $7,157.60, together with six per cent interest from the date of the allowance in the probate court, May 17, 1954. Upon this appeal by Miss Ellison's administratrix, the demand having been tried by the court without a jury, it is the duty of this court, with deference to the opportunity of the trial court to judge of the credibility of the witnesses, to 'review the case upon both the law and the evidence as in suits of an equitable nature', V.A.M.S. Sec. 510.310, subd. 4 and, if possible, 'give such judgment as such court ought to have given, as to the appellate court shall seem agreeable to law.' V.A.M.S. Sec. 512.160; Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301. And in this connection, rejected testimony, if in the record and admissible, will be considered upon the review and any incompetent testimony admitted or considered by the trial court will be disregarded. Middelton v. Reece, Mo., 236 S.W.2d 335, 341; Boggess v. Cunningham's ham's Estate, Mo.App., 207 S.W.2d 814, 817-818.

For the purpose of scrutiny and careful analysis in connection with the evidence and the essential merits of the plaintiff's claim and because of the alleged insufficiency of the statement it is necessary to set forth with some emphasis the essence of the demand. The principal allegations of the demand are contained in a single sentence: 'For services rendered to Nellie Ellison from December 26th, 1945 * * * including the following: Taking Nellie Ellison to the hospital and clinic for examination and treatments; arranging for appointments with doctors, beauticians and seeing that the said Nellie Ellison was taken to fill said appointments; transacting business for the said Nellie Ellison including paying of bills, shopping, having her income tax returns prepared and seeing that same were properly filed; arranging for a place for Nellie Ellison to stay and checking to see that she was receiving the care and attention she desired; carrying meals to her when the hotel grill was closed or when she was unable to go to the dining room for her meals; furnishing a home for the decedent during the months of June, July, August and September, 1947, during which time the hotel was out of operation due to high water; seeing that Nellie Ellison was given her medicine, bathed, waited on and cared for when she was bedfast; looked after moving Nellie Ellison's personal effects from the hotel and returning them when she was again able to return to the hotel; removing Nellie Ellison and her personal effects from the hotel on February 17th, 1951, when the hotel was threatended by a fire and keeping the said Nellie Ellison in claimant's home for four (4) weeks thereafter; waiting upon and administering medicine and food to Nellie Ellison during said time, bathing and caring for her; removing Nellie Ellison from the hotel to claimant's home for eight weeks in 1951 during which time the hotel was out of operation because of high water and during this time the claimant fed, bathed, administered medicine to and took care of Nellie Ellison; supervised and assisted in returning the deceased and her personal effects to the hotel when the place was again in operation; removing the deceased from the hotel on April 23, 1952 to the home of claimant where Nellie Ellison was kept until her death on May 16th, 1952 during which time claimant cared for and administered to the said Nellie Ellison in addition to obtaining other individuals to stay with the said Nellie Ellison a part of the time, * * *.' It is then alleged that 'all of the above services were continuous from the date of December 26th, 1945 to the death of Nellie Ellison * * *.' The claim is thereafter itemized in this manner: 'the fair and reasonable value for the services rendered for Nellie Ellison for sixty-nine (69) months at Seventy-Five Dollars ($75.00) per month, $5,175.00. The fair and reasonable value for seven and two-thirds (7 2/3) months at Two Hundred Seventy-Five Dollars a month, $1,925.00. For making arrangements for the funeral, selecting the casket, etc., $50.000. May 16th, 1952, Call to Jefferson City, Mo., for decedent, $1.25. May 17th, 1952, Call to Jefferson City, Mo., $2.03. Call to Hannibal, Missouri, $1.02. Call to St. Louis, Missouri, $3.30. Total $7,157.60.'

As a demand against an estate, or the statement of a claim upon which relief could be granted in a demand, this one may be rather unique but it does state 'the amount and nature of his claim', V.A.M.S. Sec. 464.030, and is sufficient for the purpose for which it was originally intended, the legal exhibition of a demand against an estate. V.A.M.S. Sec. 464.010; Britian v. Fender, 116 Mo.App. 93, 92 S.W. 179; Joseph v. Joseph, Mo.App., 164 S.W.2d 145. There is no specific allegation or claim that the services were rendered at the special instance and request of Miss Ellison but it is a fair and reasonable inference from the statement that the services were not gratuitously rendered; there was no family relationship, certain services were rendered and accepted in circumstances from which it is a reasonable inference that they were to be paid for. Patrick v. Crank, Mo.App., 110 S.W.2d 381, 384-385; Wells v. Goff, supra. While not artistically stated in legal terminology, the claim in fact states a cause of action in assumpsit or, in more modern terminology, restitution--a quasi-contractual obligation based upon unjust enrichment. Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39; In re Hukreda's Estate, Mo., 172 S.W.2d 824; Nibler v. Coltrane, Mo., 275 S.W.2d 270, 273-274; Vosburg v. Smith, Mo.App., 272 S.W.2d 297. While the claim, in a generic sense, may be analogous to an action upon an account, as for the purpose of determining when interest is due and payable 'on accounts after they become due and demand of payment is made', V.A.M.S. Sec. 408.020; Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572, 576; Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978, it is, as stated, precisely what it in terms purports to be, an action to recover the reasonable value of services upon the basic theory of unjust enrichment. We are not concerned here with the applicability of the interest statute, there was no claim for interest in the demand. There was no account, neither Mrs. Prentice nor Miss Ellison kept an account or for that matter any record or writing, and the fact of the plaintiff's setting forth the items in her demand does not alter the essential nature of the claim. Poague v. Mallory, 208 Mo.App. 395, 235 S.W. 491. Miss Ellison's administratrix offered in evidence two checks to Mrs. Prentice, one dated May 19, 1951 in the sum of $100 'for room and board' and a second check for $100 dated February 24, 1951, but upon objection by plaintiff's counsel they were excluded until it was shown 'that they were used for some payment that is on that demand.'

Considering, first, the demand itself. It is plainly alleged that 'all of the above services were continuous from the date of December 26th, 1945 to the death of Nellie Ellison.' When the claim is broken down in the demand it is for sixty-nine months at $75 per month and seven and two-thirds months at $275 per month. In point of time the claim covers every day from December 26, 1945 to the date of Miss Ellison's death, six years, four months and twenty-one days later. From a monetary standpoint there is a claim for every day of that period of time and even beyond Miss Ellison's death. In setting forth the demand we have italicized the words 'arranging for,' 'seeing that,' 'having,' 'checking to see,' 'looked after,' 'obtaining' and 'supervised.' This is not to say that these words in their context carry the connotation of services for which compensation may not be had, however, they are not words describing the actual, personal performance of menial tasks or services. In the demand there are seven instances in which it is specifically alleged that Mrs. Prentice personally performed certain acts and services for Miss Ellison, as 'transacting business,' 'carrying meals to her,' 'furnishing a home,' 'removing Nellie Ellison and her personal effects,' 'waiting upon and administering medicine,' 'fed, bathed, administered medicine' and 'removing the deceased from the hotel on April 23, 1952.' It is also noteworthy, while the demand alleges continuous service, that it excerpts from the total period specified dates and attributes to them special significance, 'furnishing a home for the decedent during the months of June, July, August and September, 1947,' removing Miss Ellison from the hotel and keeping her in claimant's home for four weeks following 'February 17th, 1951,' and again 'for eight weeks in 1951' and, finally, removing and keeping her in claimant's home from 'April 23, 1952 * * * until her death on May 16th.' It is assumed that these excerpted dates account for the itemized claim of $275 a month for the period of seven and two-thirds months.

In general the proof followed the statements set forth in the demand, and, it may be added, under the basic theory of the claim, shows that Miss Ellison's estate...