Morris v. Retz

• Citation: 413 S.W.2d 544
• Decision Date: 06 February 1967
• Docket Number: No. 24643,24643
• Parties: William S. MORRIS, Administrator of the Estate of Lee Haynes, Deceased, Appellant, v. Grayce L. RETZ, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 544

413 S.W.2d 544

William S. MORRIS, Administrator of the Estate of Lee Haynes, Deceased, Appellant, v. Grayce L. RETZ, Respondent.

No. 24643.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1967.

Motion for Rehearing and/or Transfer to Supreme Court April 3, 1966.

Application to Transfer Denied May 8, 1967.

William M. Day, Walter A. Raymond, Raymond, West & Strader, Kansas City, for appellant.

Len L. Balke, Kansas City, for respondent.

BLAIR, Judge.

Grayce L. Retz filed a claim in the Probate Court of Jackson County, Missouri, against the estate of Lee Haynes, deceased, for services rendered him during his lifetime and after trial that court allowed her $7,200.00. William S. Morris, the administrator, appealed this allowance to the circuit court. By stipulation a jury was waived and the cause was submitted to that court on the record of the evidence and the exhibits previously submitted to the probate court. The record consisted solely of the evidence and the exhibits of Grayce L. Retz, for the administrator presented no evidence of any sort in either court. The circuit court rendered judgment for Grayce L. Retz in the sum of $12,500.00. From this judgment the administrator appeals. We shall refer to the administrator as Morris and to the respondent as Mrs. Retz.

Our duty is to review this action at law upon the law and the evidence as suits of an equitable nature are reviewed by appellate courts. Civil Rule 73.01(d), V.A.M.R. However, as stated, it was submitted to the trial court solely on the record of the evidence and exhibits previously submitted to the probate court. Where a case is submitted to a trial court solely on such evidence, the deference usually accorded to its determination of questions of fact because of its superior opportunity to evaluate the credibility of the witnesses personally appearing before it does not apply for the obvious reason that no witnesses appeared before it and it had no opportunity to evaluate credibility superior to that of the reviewing court. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 635, 86 A.L.R.2d 925; Temperato v. Horstman, Mo., 321 S.W.2d 657, 661; 3 Mo. Digest, Appeal and Error, Key No. 1008(3).

The claim of Mrs. Retz was in two parts. The first part was for services to Lee Haynes from November 8, 1953 until April 5, 1956. These services consisted of 'acting as his cook and housekeeper'. They were claimed to be of the reasonable value of $200.00 per month. The second part of her claim was for services to the deceased from April 5, 1956 until his death on November 8, 1963. These services consisted of continuing to act as his cook and housekeeper and acting 'as manager of his household and office in his home', 'bookkeeper, personal nurse and as office girl and nurse in the practice of his profession'. These last services were claimed to be of the reasonable value of $450.00 per month.

Morris contends that the judgment must be reversed because the evidence conclusively shows that Mrs. Retz and the decedent at all pertinent times lived together in a 'close and intimate' family relationship and that it must be presumed that the services were intended to be gratuitous in the absence of evidence to the contrary. He asserts that there was no evidence to the contrary. Mrs. Retz counters that Morris failed to plead the existence of a family relationship as a defense and therefore this defense was waived. She cites Muench v. South Side National Bank, Mo., 251 S.W.2d 1, 4. There the defense of family relationship was not pleaded and the court did rule that 'such defense is special and affirmative, is in the nature of a confession and avoidance and should have been pleaded, if it were to be relied upon' and denied the defense. Its reliance was on Sec. 509.090, RSMo 1949, now Civil Rule 55.10. That ruling cannot be questioned but it does not apply to this case. The Muench case was a suit on the quantum meruit for services to a decedent filed directly in a circuit court and was controlled by Sec. 509.090, now Civil Rule 55.10. The present case originated in the probate court and is not subject to the Rules of Civil Procedure. The application of those rules is expressly restricted to proceedings of a civil nature in the Supreme Court, Courts of Appeals, Circuits Courts, and Courts of Common Pleas. Civil Rule 41.02; Lenhardt's Estate v. Lenhardt, Mo.App., 322 S.W.2d 170, 173. It has long been the law in this state that formal pleadings are not required in cases originating in a probate court or on appeal therefrom to a circuit court. Cole County v. Dallmeyer, 101 Mo. 57, 13 S.W. 687; Rassieur v. Zimmer, 249 Mo. 175, 155 S.W. 24; Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39, 41; 8 Mo. Digest 2, Courts, Key No. 202(2, 5). Furthermore, the question Morris really raises is that the evidence is insufficient to support the judgment and, since this is a non-jury case, that question may be raised in the appellate court whether or not it was raised in the trial court. Civil Rule 73.01; Lenhardt's Estate v. Lenhardt, supra. The contention is without merit.

We have noticed that all of the evidence in this record was presented by Mrs. Retz and that Morris produced none. She presented ten witnesses. We believe that no purpose would be accomplished by setting forth individually the testimony of each witness and that generally a summary of their testimony is sufficient for the purposes of this case. On the important features of the case they were not in disagreement. Lee Haynes was a physician. He died November 8, 1963, at the age of 90. We gather from the record that Mrs. Retz and he were neighbors and lived across the street from each other as early as 1942. Whether they were mere acquaintances, friends, or more, or less, while they merely lived as neighbors, the record does not disclose. Prior to 1955, Mrs. Retz was an unlicensed practical nurse and 'active' in her profession. Sometime prior to 1952 Doctor Haynes moved his office into his home across the street from the home of Mrs. Retz. Sometime during 1952 Mrs. Retz became the doctor's cook and housekeeper and his 'assistant as a nurse, assisting the doctor with patients', working for him only part time. She also worked for others. In 1955 she obtained a state license as a practical nurse and renewed it as required each year and it was still valid at the time of the doctor's death.

In 1956 she moved into the doctor's home. He was then approximately 83 years old. She continued as his housekeeper and cook and became his personal and office nurse on a full time basis. She was 'on call' by him at all times seven days a week except for brief absences. If she was briefly absent, she asked a neighbor to look in on him. At first she moved a part of her furniture into his home. During the first two years she was there, she left a part of her furniture in her own home and paid the rent on that home. Then she moved the rest of her furniture to the doctor's home. Whether she furnished a part of the living quarters of the home with her furniture or merely stored it is not established by this record. The doctor's house consisted of two stories. The second story was unfinished. The living quarters were on the first floor. From the time she moved into his home in 1956, she ate her meals there. There were two bedrooms on the first floor. The doctor slept in the 'back room' on the first floor and she slept in the 'front room' on the same floor in order 'to watch the door'. She cooked the meals and did the laundry. She took care of the yard. She worked 'hard'. She did 'everything'. She accompanied the doctor on calls and 'helped to give shots, getting the medicine ready for the patients'. Ordinarily he drove to his calls in his automobile and she accompanied him. When he walked to his calls she carried his medicine case for him. In the office she usually wore a nurse's uniform. She answered the telephone, helped with the patients and gave them medicine and shots. The doctor dispensed his own medicines. She assisted him in preparing his prescriptions. She assisted him in getting medicine together for the patients. She assisted him with his instruments. When the drug salesman with whom he dealt about every three weeks called at his office, ordinarily Mrs. Retz and he would check to see what drugs were needed. On infrequent occasions when he was absent from the office and Mrs. Retz was present, if the drug salesman called, she ordered from him what drugs she considered were needed by the doctor. He had given her this authority. On this record there is no question that, in addition to performing her other services, she served the doctor as his constant and regular office nurse during all of the period in question on this appeal. A former president of the Kansas City Chapter of the Professional Association of Licensed Practical Nurses in this state testified that the prevailing rate for a licensed practical nurse was $15.00 per day from 1956 until May 1, 1963 when the rate was elevated to $17.00 per day. These rates were payable to licensed practical nurses living in the home of the employer. The duty of a licensed practical nurse consisted of taking care of the patient, his bedroom and his diet. This duty did not require taking care of the household. This summary is brief but it accurately reflects the evidence relating to the services rendered by Mrs. Retz to the doctor part time before November 8, 1956, and full time seven days a week continuously from November 8, 1956 to November 8, 1963, when he died following a brief illness.

One witness was asked if she noticed any change in the doctor's condition during the 'last year or so' of his life and she answered that she did. There was other testimony that in the 'last year or so' of his life he was enfeebled, 'failing' and blind in one eye. The witness was asked 'Did he require any assistance when he walked?' She answered that he did. She was asked 'Did anybody give him that help?' She a...