Nelson v. Poorman's Estate

• Decision Date: 04 November 1919
• Docket Number: No. 15501.,15501.
• Citation: 215 S.W. 753
• Parties: NELSON v. POORMAN'S ESTATE et al.
• Court: Missouri Court of Appeals

215 S.W. 753

NELSON v. POORMAN'S ESTATE et al.

No. 15501.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Rehearing Denied Nov. 20, 1919.

Appeal from Circuit Court, Audrain County; Samuel Davis, Special Judge.

"Not to be officially published."

Action by Mary Elizabeth Althiser Nelson against John W. Howell, administrator of the estate of Anna Poorman, deceased. Judgment for plaintiff was rendered in the probate court, but on appeal by the administrator to the circuit court, an instruction directing the jury to find for defendant was given, and plaintiff appeals. Affirmed.

Clarence A. Barnes and Stocks & Stocks, all of Mexico, Mo., for appellant.

R. D. Rodgers and Fry & Fry, all of Mexico, Mo., for respondent.

NIPPER, C.

This action originated in the probate court of Audrain county, where the appellant, Mary Elizabeth Althiser Nelson, then Mary Elizabeth Althiser, filed her account for services rendered to Anna Poorman, deceased, beginning on June 1, 1896, and ending October 13, 1908, for a sum amounting to $4,425. The appellant obtained judgment in the probate court for $3,000, after which the administrator of the estate of Anna Poorman, deceased, appealed to the circuit court of Audrain county, where the case was tried on the 13th of September, 1916. At the close of all the evidence offered on the part of the appellant, and at the request of respondent, the court gave an instruction in the nature of a demurrer, directing the jury to find in favor of the respondent. Prom this action of the trial court, the appellant, in due time and manner, perfected her appeal to this court.

The evidence in this case, offered on the part of the appellant, would tend to show that about the year 1896 the appellant, Mary Elizabeth Althiser, who was commonly known by the neighbors in the community in which she lived as Lizzie Althiser, or Lizzie Poorman, was a child about 9 or 10 years of age. It seems that her father and mother were separated, and that she was at that time living with her father. Her grandfather consulted one Rev. H. B. Rice, a minister, who resided near the home of appellant's grandfather, with reference to finding Lizzie a home. The testimony discloses that the minister, above referred to, met appellant's grandfather, at some place where he was conducting religious services, or we believe met him at a creek. This was about the year 1895 or 1896. The grandfather of appellant introduced himself to the minister and asked him to help to locate a home for the little girl. The minister agreed to take her to his own home, keep her for a few days, and see if he could get her a home, and, if he could not, he was to return the child. The minister had heard that one Wilson Poorman and his wife, Anna Poorman, wanted a child, and they took this child into their home at about the time mentioned, either through or by the suggestion of the minister, or by having heard of such a girl and of her wanting a home. The Poormans at that time were very old people, living on an 80-acre farm near Rush Hill, Mo., where they lived for some time after taking Lizzie into their home, and then later moved into town. The appellant in this case lived in their home up until the time of the death of Mrs. Poorman, which occurred October 12, 1908. The minister, Rev. Rice, further testified that nothing had ever been said to him by the deceased about paying the girl for her services.

The testimony shows that a portion of the time Wilson Poorman rented his farm to others, while he lived on the farm, and in addition to the rents he also received a pension. A number of witnesses testified for the plaintiff in this case, most all of whom were neighbors at one time or another during the period which the appellant, worked or made her home with the Poormans. Twice during Lizzie's stay there Mrs. Poorman suffered from fractures, which necessitated her being in bed a good portion of the time. The testimony shows that the appellant waited on her and helped to care for her during those times. She was also seen working in the field, helping to care for the crops, and aiding and assisting Wilson Poorman with his work. She went to school part of the time, and was known among the neighbors and acquaintances as Lizzie Poorman. There is no fact, or even circumstance, in this case, so far as we are able to see, tending to show that Mrs. Poorman ever intended to pay appellant anything for her services, but that she was living in this home, where she had been placed through the efforts of her grandfather, where she was looked upon as one of the family. At the time she first went to the Poorman home, she did not go there seeking employment or to find a place to work; but all the testimony on this point tends to show that her grandfather was seeking a place for her, where she could be taken Into a home. She was only 9 or 10 years old at the time, and consequently unable to render much service for which she could expect remuneration.

We think the existence of the family relation in this case is clearly...