Reddy v. Johnston, 8336

• Decision Date: 14 February 1956
• Docket Number: No. 8336,8336
• Parties: Irene REDDY, Administratrix of the Estate of Barbara Fuller, deceased, Plaintiff-Respondent, v. A. A. JOHNSTON, Executor of the Estate of John B. Barthel, deceased, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 945

293 P.2d 945

77 Idaho 402

Irene REDDY, Administratrix of the Estate of Barbara Fuller, deceased, Plaintiff-Respondent, v. A. A. JOHNSTON, Executor of the Estate of John B. Barthel, deceased, Defendant-Appellant.

No. 8336.

Supreme Court of Idaho.

Feb. 14, 1956.

W. A. Johnston, Boise, for appellant.

Benton F. Delana, Z. Reed Millar, Boise, for respondent

ANDERSON, Justice.

The complaint of plaintiff (respondent) Barbara Fuller alleged that at the special instance and request of John B. Barthel during his lifetime she performed work and labor for him in nursing and caring for him, running personal errands, getting medicine and meals, etc., and endeavoring to obtain a nursing home for him, all of these services being between September 1, 1950, and May 12, 1953, the date of Barthel's death.

After his death, a claim was presented to A. A. Johnston, the executor of Barthel's estate, by Barbara Fuller for the services heretofore mentioned. The claim was denied, and this action commenced, the complaint setting out two causes of action, the first being based on an oral agreement with Barthel to pay plaintiff the reasonable value of her work and labor, which is alleged to be the sum of $2,000. The second cause of action is the same, except it is based upon quantum meruit. The matter was tried to a jury, and resulted in a verdict and judgment for plaintiff in the sum of $2,000.

Briefly, the evidence disclosed that Barthel had lived at the Idan-ha Hotel in Boise for several years, and continuously from September 1, 1950, to November 29, 1952, except for a short time when he was in Arizona trying to cure his asthma, with which he had been afflicted for some time. During this period he had severe attacks of asthma, Miss Fuller assisted in running errands to secure medicine, meals, etc., for him, and took him several times to see his doctor.

November 29, 1952, Barthel fell and injured one of his hips, and Miss Fuller arranged to have him taken to St. Alphonsus Hospital, where she visited him nearly every day and assisted in making him comfortable, and did errands for him, such as bringing his mail, papers and little personal items. This continued until his death May 12, 1953. No claim or demand for payment was made during his lifetime.

The judgment was entered in this case March 18, 1955. May 24, 1955, Barbara Fuller died; and August 12, 1955, Irene Reddy was duly appointed administratrix of her estate, and was thereafter substituted as party plaintiff and respondent in this proceeding.

Appellant assigns as error that the trial court erroneously overruled defendant's demurrer to the complaint and the two causes of action in that neither of the causes of action nor the complaint as a whole is sufficiently pleaded against the defendant in his representative capacity. While the complaint is not a model to be followed in actions of this nature, nevertheless we are of the opinion that it sufficiently shows that the action was brought against Johnston as executor, rather than in his individual capacity. The complaint is entitled 'A. A. Johnston, executor of the estate of John B. Barthel.' It alleges his appointment as such June 10, 1953, that the alleged services were performed for the deceased and a claim was made against the estate and denied, and that it has not been paid by the deceased nor his executor. We think it is clear that the executor was sued in his representative capacity. Where the allegations of a complaint indicate with reasonable certainty that a plaintiff sues, or a defendant is sued, in a representative capacity, although there be no express or specific averment thereof, this is sufficient to fix the character of the suit. 67 C.J.S., Parties, § 100, p. 1096. The trial court properly overruled the demurrer. The complaint states a cause of action.

Appellant contends that the trial court erred in refusing to permit the executor to testify relative to whether he had found anything signed by anyone pertaining to payment having been made. While the questions were preliminary in nature, they were still too broad and not in proper form, and therefore the trial court's ruling thereon was technically correct. Furthermore, defendant did not plead nor claim plaintiff had been paid.

Appellant contends that the evidence is insufficient to support the judgment, in that there is no proof that Miss Fuller rendered any services to the deceased with expectation of pay, nor any evidence that Barthel expected to pay for such services, and that there is insufficient evidence as to the reasonable value of the claimed services.

We have examined the record, and while the evidence was rather weak in some respects, there was sufficient--although conflicting--evidence to go to the jury. Whether Miss Fuller performed services as alleged in her complaint, and if so the extent thereof and whether as a gratuity or not, and if not, their reasonable value, were questions for the jury under the conflicting evidence in this case. 54 A.L.R. 548, 551; In re Superior's Estate, 211 Minn. 108, 300 N.W. 393. Defendant's motion for nonsuit was properly denied.

The court instructed the jury that if they found that such services were rendered and performed, and knowingly and voluntarily accepted, that the law presumes an obligation to pay the reasonable value therefor. This was in compliance with Nagele v. Miller, 73 Idaho 441, 253 P.2d 233.

The court, in paragraph 3 of instruction No. 6, stated:

'This...