Olson's Estate, In re

• Decision Date: 13 February 1959
• Docket Number: No. 34485,34485
• Citation: 167 Neb. 799,95 N.W.2d 128
• Parties: In the Matter of the Estate of John OLSON, Deceased. Carl CHRIST, Jr., Administrator of the Estate of Beatrice Nelson, Deceased, Appellant, v. Anna NELSON, Administratrix of John Olson, Deceased, Anna Nelson and Nils Olausson, Appellees.
• Court: Nebraska Supreme Court

Page 128

95 N.W.2d 128

167 Neb. 799

In the Matter of the Estate of John OLSON, Deceased.

Carl CHRIST, Jr., Administrator of the Estate of Beatrice Nelson, Deceased, Appellant, v. Anna NELSON, Administratrix of John Olson, Deceased, Anna Nelson and Nils Olausson, Appellees.

No. 34485.

Supreme Court of Nebraska.

Feb. 13, 1959.

Syllabus by the Court

1. In an appeal from an order directing a verdict and dismissing an action, the party against whom the verdict was directed is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

3. In an action where the evidence produced by the plaintiff is not sufficient to support a verdict in his favor, it is the duty of the trial court to direct a verdict for the defendant.

4. If a domestic servant has received stated sums periodically over a period of years in payment of wages for his services and a claim for additional compensation therefor is not made during his lifetime or during the lifetime of his employer, there arises a presumption that claimant has been paid in full for such services, which presumption must be rebutted by competent evidence adduced in plaintiff's behalf in order to make a prima facie case.

5. Questions as to presumption of payment and rebuttal thereof are for the jury on conflicting evidence, but where the facts are undisputed the sufficiency of the evidence to rebut a presumption of payment may become a question of law for the court.

Jack R. Knicely, Sidney, for appellant.

Thorpe & Babcock, Sidney, Swenson, Erickson & Westering, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ. CHAPPELL, Justice.

Plaintiff, Carl Christ, Jr., as administrator of the estate of Beatrice Nelson, deceased, appealed from the county court of Cheyenne County to the district court from the disposition of a claim filed October 25, 1957, in the estate of John Olson, deceased. Such claim sought to recover the reasonable value of services as a housekeeper allegedly rendered for John Olson during his lifetime by Beatrice Nelson, from January 1931 to April 1954, prior to her last illness and death May 22, 1954, less amounts paid to and expended for Beatrice Nelson by John Olson, who died June 20, 1957.

Plaintiff's petition on appeal, as far as important here, alleged that Beatrice Nelson during her lifetime rendered services as a housekeeper for John Olson at his request during the aforesaid period; alleged that the reasonable value thereof was a total of $31,620; admitted that John Olson had paid Beatrice Nelson and had expended for her a total of $6,913.66, to be applied thereon; and sought recovery of $24,706.34 together with interest and costs, in conformity with plaintiff's claim theretofore filed in and disposed of by the county court.

Defendants, Anna Nelson as administratrix de bonis non with the will annexed of the estate of John Olson, deceased, and a brother of John Olson who was a beneficiary under his will, executed January 11, 1957, filed an answer. Therein, as far as important here, they admitted that such a claim had been filed in the county court; admitted that $4,713.66 had been paid over to Beatrice Nelson, deceased, by John Olson, deceased, during his lifetime; and admitted that John Olson had paid the medical and hospital expenses incurred by Beatrice Nelson during her last illness and the expenses for her funeral in the sum of $2,200, which by calculation makes a total sum of $6,913.66 paid to or for Beatrice Nelson by John Olson. Such answer specifically denied each and every other allegation of plaintiff's petition, and alleged that if any services were rendered by Beatrice Nelson for John Olson for which compensation was due, same was fully paid for during the lifetime of John Olson. The answer also alleged that Beatrice Nelson died May 22, 1954, and John Olson died June 20, 1957, and if any claim of Beatrice Nelson existed for services rendered by her for John Olson, same should have been made during his lifetime. Plaintiff's reply was a general denial.

Upon trial to a jury and at conclusion of plaintiff's evidence, defendants' motion for directed verdict was sustained, and plaintiff's claim was dismissed for insufficiency of the evidence to support a verdict for plaintiff. Plaintiff's motion for new trial was thereafter overruled, and he appealed, assigning as far as important here that the trial court: (1) Erred in sustaining defendants' motion for directed verdict; and (2) erred in overruling plaintiff's motion for new trial. We do not sustain the assignments.

There are numerous well-established rules of law which are applicable and controlling in cases such as that at bar. In Bryant v. Greene, 164 Neb. 15, 81 N.W.2d 580, 581, we reaffirmed that: 'In an appeal from an order directing a verdict and dismissing an action, the party against whom the verdict was directed is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.'

In Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N.W. 551, 552, this court held: 'In every case before the evidence is submitted to the jury there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.'

In Cunn v. Coca-Cola Bottling Co., 154 Neb. 150, 47 N.W.2d 397, 399, this

court held: 'In an action where the evidence produced by the plaintiff is not sufficient to support a verdict in his favor, it is the duty of the trial court to direct a verdict for the defendant.'

As stated in In re Estate of Benson, 128 Neb. 138, 258 N.W. 60, 62: 'The burden of proof was on claimant. She was required to make a prima facie case--one in which the adduced evidence, standing alone, warranted the finding of facts to be proved.' In other words, the general rule in cases where claimant seeks to recover the reasonable value of services rendered under an implied contract, the burden is upon such claimant to prove, in order to make a prima facie case, that he rendered services for defendant at his request or that they were knowingly accepted by him and the reasonable value of such services less the amount, if any, already paid therefor. In that connection also, the general rule is that: 'Where an administrator pleads that a claim against [him] was paid in full during the life of the decedent, the burden is on him to prove that defense.' In re Estate of Johnson, 144 Neb. 372, 13 N.W.2d 412, 413.

Be that as it may, the character and quantum of proof required of claimant in order to make a prima facie case in those situations wherein claimant and defendant or decedent have a family relationship, claimant is required to rebut by competent evidence the presumption that the services were rendered gratuitously. See In re Estate of Baker, 144 Neb. 797, 14 N.W.2d 585, 155 A.L.R. 950. Likewise also, in cases comparable with that at bar, wherein Beatrice Nelson received stated sums periodically as wages and no claim for additional compensation as a housekeeper was made by her for 25 years during the lifetime of herself and John Olson, and none was made by the administrator of her estate until 3 years and 5 months after her death, and 4 months after the death of John Olson, courts generally hold that there is a presumption that claimant, a domestic servant, has been fully paid for her services, which presumption must be rebutted by competent evidence adduced in claimant's behalf in order to make a prima facie case. In that connection, it is elementary that the burden of proof never shifts but the duty to go forward with and adduce evidence to overcome a presumption rests upon the party against whom the presumption arises. Reasons for the latter rule were discussed at length in Kucaba v. Kucaba, 146 Neb. 116, 18 N.W.2d 645.

As stated in 56 C.J.S. Master and Servant § 121, p. 563, citing authorities: 'The presumption that services have been rendered gratuitously or else that they have been fully paid for is especially applicable to domestic servants * * * who make no demand for further payment until a considerable period after the termination of their services. Such a presumption may be rebutted, however, by evidence tending to show that the services were rendered with an understanding between the parties that they were to be paid for, or that no payment had been made, as, for example, where the employee demands payment and the employer promises to pay at some future time.' See, also, 39 C.J., Master and Servant, § 262, p. 189; 71 C.J., Work and Labor, § 111, p. 132; 24 C.J., Executors and Administrators, § 1120, p. 401; 98 C.J.S. Work and Labor § 48, p. 795, citing authorities.

As stated in 34 C.J.S. Executors and Administrators § 370, p. 104, citing authorities: 'Where services have been fully paid for in the lifetime of decedent, there cannot, of course, be any further recovery on that account against the estate; where claimant has received a stated sum periodically in payment of wages, * * * the presumption is against a larger allowance, unless decedent is shown to have agreed accordingly; * * *.' As otherwise stated in § 370, p. 106, citing authorities: 'However, a claim withheld, or not made or presented, until after the death of the person to whom the services were rendered is viewed with suspicion, or at least ...