Murphy v. Pfeifer
| Decision Date | 04 May 1937 |
| Docket Number | No. 23575.,23575. |
| Citation | 105 S.W.2d 39 |
| Parties | MURPHY v. PFEIFER. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Division 9; Clyde C. Beck, Judge.
"Not to be published in State Reports."
Action by Cora Murphy against Anna H. Pfeifer, executrix under the last will of Mary Mullen, deceased. Plaintiff's claim was allowed by the probate court, and the executrix appeals to the circuit court, where a trial de novo was had. From a judgment, the executrix appeals.
Affirmed.
Robert M. Zeppenfeld and Milton M. Metz, both of St. Louis, for appellant.
Frank H. Lydick and Fred A. Gossom, both of St. Louis, for respondent.
This is an action to recover for services alleged to have been rendered by Cora Murphy, plaintiff and respondent in this case, to Mary Mullen, now deceased, at her special instance and request, begun in the probate court of the city of St. Louis following her death.
Notice was served on Anna H. Pfeifer, the executrix under the will of Mary Mullen, deceased, who had charge of her estate, of the intended presentation of plaintiff's claim for allowance and classification against the estate of said deceased, the claim being described as "a demand founded on an account and indebtedness for services rendered said deceased at her special instance and request." This notice was accompanied by an exact copy of said demand. The demand so presented and filed reads as follows:
This demand was accompanied by the affidavit of claimant as prescribed by section 193, R.S.Mo.1929 (Mo.St.Ann. § 193, p. 127).
The trial, had in the probate court without a jury, resulted in the allowance of the claim in the sum of $1,000 and an order placing it in the second class. From the judgment of the probate court making this allowance, the executrix appealed to the circuit court of the city of St. Louis.
Upon a trial de novo in the circuit court before a jury the latter returned a verdict in favor of claimant in the sum of $700 and, from the judgment rendered thereon defendant, the executrix, appealed to this court. Plaintiff, respondent, has filed no brief.
Miss Mullen was 68 or 70 years old at the time of her death, which occurred on July 26, 1932. There is no dispute as to the fact that Miss Mullen rented a room at plaintiff's home on Finney street in the city of St. Louis, fitted up for light housekeeping, and lived there from August 15, 1930, until the date of her death, July 26, 1932. There is also no controversy about the payment of the rent by Miss Mullen for the room occupied by her for the full time; she paid it punctually by the week. There was positive testimony given by plaintiff's brother, who lived in plaintiff's home during the entire time Miss Mullen had her room there, that nothing was ever paid for the services involved in this suit.
When Miss Mullen first came to live in the home of plaintiff's she was a semiinvalid. She had a broken ankle and was unable to get around well. She gradually became worse, weaker, and more incapacitated until during the latter part of her stay at Mrs. Murphy's she was required to have nurses look after her. She received a pension of $72 per month from the United States government on account of having been a nurse in the Spanish-American War.
There was ample testimony to show that Mrs. Murphy did a variety of services for Miss Mullen while she lived in her home. It was shown in testimony that Mrs. Murphy was very kind to her and did such services as preparing her meals and bringing them to her, buying food for her, doing her laundry work, nursing her and caring for her, giving her baths, making up her bed, cleaning up her room, running errands for her. She would buy food for her and her nurses and visitors, but Miss Mullen would always furnish the money for such outlays.
It was also shown by testimony adduced that Mrs. Murphy handled Miss Mullen's money, paid her bills out of same and paid the nurses who were called in at times, and after Miss Mullen's death, turned over to the executrix, Miss Pfeifer, $56 in cash, being the remainder of Miss Mullen's money left in her hands.
One witness, Mrs. Clara Warner, who also lived in Mrs. Murphy's home, testified to the rendition by Mrs. Murphy of the services involved in this suit. We quote the following from this witness' testimony, viz.:
The principal complaint urged by counsel for the executrix is to the effect that the pleading shows that the plaintiff was attempting to recover on an express contract claimed to have been entered into between her and Mary Mullen for the latter to pay $10 per week for services, etc.; that the evidence not sustaining the express contract that, therefore, plaintiff may not recover on the theory of an implied contract and on quantum meruit, and assails the instructions because they permitted a recovery on behalf of plaintiff if the jury found that the services were rendered based on the reasonable value thereof.
We are unable to give our assent to this criticism of the pleading. Counsel overlooked the fact that the strict technical rules of pleading do not apply in the probate court, nor do they apply in the circuit court on an appeal from the allowance of a demand in the probate court, inasmuch as the circuit court's jurisdiction is purely derivative and great latitude is allowed in respect to the pleadings in the circuit court as in the probate court. It is...
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