Renfrew v. Goodfellow

• Decision Date: 05 December 1911
• Citation: 141 S.W. 1153,162 Mo.App. 333
• Parties: ELIZA J. RENFREW, Respondent, v. JOSEPH S. GOODFELLOW, Administrator, Appellant
• Court: Missouri Court of Appeals

141 S.W. 1153

162 Mo.App. 333

ELIZA J. RENFREW, Respondent, v. JOSEPH S. GOODFELLOW, Administrator, Appellant

Court of Appeals of Missouri, St. Louis

December 5, 1911

Argued and Submitted November 9, 1911.

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

AFFIRMED.

Judgment affirmed.

Jamison & Thomas for appellant.

(1) It was error on the part of the court to permit Joseph W. Dowler to testify relative to statements made by the plaintiff especially in view of the fact that Joseph A. Goodfellow was hard of hearing and took no part in the conversation. It was also error on the part of the court to permit Dowler to testify that plaintiff's statement was loud enough for Goodfellow to hear, such testimony being clearly a conclusion of the witness and inadmissible. McLean v Rutherford, 8 Mo. 109; Tufts v. City of Charleston, 4 Gray (Mass.) 537; Clark v. State, 78 Ala. 474; Martin v. Ins. Co., 85 Iowa 643; Jackson v. Wood Working Co., 91 Hun (N. Y.) 435. (2) It was error on the part of the court to permit Mary A. Goodman to testify that Joseph A. Goodfellow said that he intended to give the plaintiff the mortgage upon plaintiff's residence, especially since the court did not afterwards in its instructions limit the amount of recovery to the value of the mortgage. Koch v. Hebel, 32 Mo.App. 103; Crump v. Rebstock, 20 Mo.App. 37; Seuits v. Taylor, 20 Mo.App. 166; Fox v. Car Co., 16 Mo.App. 122; Iron Co. v. Halverson & Co., 48 Mo.App. 383; Mansur v. Botts, 80 Mo. 651; Bosard v. Powell, 79 Mo.App. 184; Walker v. Gay's Est., 73 Mo.App. 89. (3) It was error on the part of the court to permit Judge Holtcamp to testify as to the memorandum of judgment made by him at the second trial of this case in the probate court, especially in view of the fact that plaintiff's counsel's question embodied the substance of that the memorandum as to what had taken place on the trial of the case in the probate court. R. S. 1909, sec. 296; Bank v. St. John, 17 Wis. 157; York v. Orton's Adm., 65 Wis. 6. (4) It was error on the part of the court to permit Henry Goodman to testify that Joseph A. Goodfellow said that Mrs. Renfrew was the best cook in St. Louis, and that she used to cook anything and everything he asked for. The suit in this case was for nursing and caretaking and not for cooking. The testimony was prejudicial error in view of plaintiff's instructions numbered 2 and 3 given by the court. Brooks v. Blackwell, 76 Mo. 309; State ex rel. v. Martin, 77 Mo. 671; Haynes v. Christian, 30 Mo.App. 198; Farrar v. Snyder, 31 Mo.App. 93; Huston v. Scale Works, 56 Mo. 416. (5) It was error on the part of the court to permit D. D. Currie to testify to the effect that the plaintiff had made the statutory oath and that she had sworn in the probate court that she had allowed all just credits and set-offs in the claim in question. The statute expressly provides that the statutory oath or affidavit is no evidence as to the correctness of the claim; and since the claimant against a decedent's estate is by statute disqualified from testifying, the testimony of the witness to the effect that she had sworn to the claim was inadmissible, and reversible error. R. S. 1909, sec. 201; R. S. 1909, sec. 6354; Dorn v. Parson's Admrx., 56 Mo. 601; Dobbs v. Cate's Estate, 60 Mo.App. 658; Ins. Co. v. Linchey, 3 Mo.App. 587; Million v. Ohnsorg, 10 Mo.App. 432; Wood v. Flanery, 89 Mo.App. 632; Koch v. Hebel, 32 Mo.App. 103; Ibid, 40 Mo.App. 241. (6) It was error on the part of the court to exclude the pleadings in the case of Goodfellow v. Renfrew in view of the fact that the court had admitted the judgment entry in said case, which was based upon said pleadings. (7) The court erred in permitting Walter N. Davis to testify for what purposes Mrs. Renfrew gave the note for $ 4478.93 dated Feb. 2, 1910. (8) The court erred in refusing to give defendant's instruction of nonsuit at the close of plaintiff's case. There was no competent evidence offered on behalf of the plaintiff as to the value of the services of the plaintiff. (9) The court erred in giving plaintiff's instruction No. 1. (a) Because said instruction directs a verdict in favor of the plaintiff and against the defendant for the value of the services rendered Joseph A. Goodfellow by the plaintiff, if any, not excluding from said account of services those services which already had been paid for. Black's Law Dictionary, p. 742; 2 Bouvier's Law Dictionary, p. 292; Webster's Unabridged Dictionary, pp. 884 and 1449; Wall v. Williams, 93 N.C. 327; Whilden v. Whilden, Riley Law and Equity 205; Morse v. Powers, 45 Ver. 300. (b) The testimony of Mary A. and Henry Goodman was to the effect that the deceased had promised to give the plaintiff the mortgage in payment for her services. In view of this testimony this instruction should have limited recovery to the value of the mortgage. Koch v. Hebel, 32 Mo.App. 103; Crump v. Rebstock, 20 Mo.App. 37; Suits v. Taylor, 20 Mo.App. 166; Fox v. Car Co., 16 Mo.App. 122; Iron Co. v. Halverson & Co., 48 Mo.App. 383; Mansur v. Botts, 80 Mo. 651; Bosard v. Powell, 79 Mo.App. 184; Walker v. Gay's Estate, 73 Mo.App. 89. (c) The instruction told the jury that they could find for the plaintiff in the principal sum of $ 6065, being salary at the rate of fifty dollars per month for the full period of one hundred and twenty-one months and nine days. The undisputed evidence is that plaintiff did not render services to the defendant for two and one-half months of this time. The instruction, therefore, is contrary to the undisputed evidence, and, therefore, erroneous. Hewitt v. Doherty, 25 Mo.App. 326; Duncan v. Railroad, 48 Mo.App. 659; Marr v. Bunker, 92 Mo.App. 651. (10) Plaintiff's instruction No. 2 is erroneous in that recovery is not limited thereby to compensation to the plaintiff for services rendered as caretaker and nurse, for which plaintiff sues. Budd v. Hoffheimer, 52 Mo. 297; Henry v. Rice, 18 Mo.App. 497; Bank v. Westlake, 21 Mo.App. 566; Gessley v. Railway, 26 Mo.App. 156. (11) Plaintiff's instruction No. 3 is erroneous for the reason that while it states that the burden of proof is upon the defendant to show that the plaintiff has been paid for nursing and caretakeng of the deceased, it further instructs the jury that this burden is imposed upon the defendant if it has been shown that the plaintiff rendered the services mentioned in the evidence, which services, according to the evidence, were not limited to caretaking and nursing; the instruction being thereby rendered confusing and misleading. (See cases cited under point 10.) (12) The instructions given by the court are inharmonious, conflicting and confusing, and the instructions, are, therefore, erroneous. Henschen v. O'Bannon, 56 Mo. 289; Price v. Railroad, 77 Mo. 508; Nichols, Shepard & Co. v. Jones, 32 Mo.App. 657; Evers & Hunt v. Schumaker, 57 Mo.App. 454; Stone v. Hunt, 94 Mo. 475; Schneer v. Lemp, 17 Mo. 142; State v. Herrell, 97 Mo. 105; State v. Nauert, 2 Mo.App. 295; Frank v. Railroad, 57 Mo.App. 181. (13) The court erred in refusing to set aside the verdict and judgment as they were contrary to the evidence and the weight of the evidence. Kreis v. Railroad, 148 Mo. 321; Dean v. Fire Assn., 65 Mo.App. 209; Watkins v. Donnelly, 88 Mo. 322; Woods v. Land, 30 Mo.App. 176; Guenther v. Birkicht's Admr., 22 Mo. 439; Dreyer v. Dickman, 131 Mo.App. 660; Flanders v. Green, 50 Mo.App. 371; Brewing Assn. v. Steimke, 68 Mo.App. 52; Morris v. Barnes, Admr., 35 Mo. 412; Hewitt v. Doherty, 25 Mo.App. 326; Tucker v. Railroad, 66 Mo.App. 140. (14) The verdict and judgment in this case are erroneous and should not stand for the reason that the verdict is excessive and obviously the result of prejudice and passion on the part of the jury against the estate and of their sympathy and charity for the plaintiff. (a) The prejudice and passion on the part of the jury for one party or its sympathy and charity for the other may be inferred from the fact that the verdict of the jury is against the uncontradicted evidence or the decided weight of the evidence. Flanders v. Green, 50 Mo.App. 371; Dreyer v. Dickman, 131 Mo.App. 660; Morris v. Barnes' Admr., 35 Mo. 412; Brewing Assn. v. Steimke, 68 Mo.App. 52; Spohn v. Railway, 87 Mo. 74; Duncan v. Railway, 48 Mo.App. 659; Hewitt v. Doherty, 25 Mo.App. 326; Sheedy v. Brick Works, 25 Mo.App. 527. (b) Or the above stated improper attitude of the jury may be inferred from gross excessiveness under the circumstances. Doty v. Steinberg, 25 Mo.App. 328; McClosky v. Publishing Co., 163 Mo. 22; Koeltz v. Bleckman & Horn, 46 Mo. 320; Ice Co. v. Tamm, 90 Mo.App. 202; Unterberger v. Scharff, 51 Mo.App. 109. (15) There is no competent evidence in the case to the effect that the services of the plaintiff as caretaker and nurse were worth fifty dollars per month, and there was no evidence that plaintiff rendered such services for one hundred and twenty-one months and nine days; consequently, the verdict is not supported by the evidence, and should not be permitted to stand.

W. N. Davis, D. D. Currie and G. B. Arnold for respondent.

(1) Lay witnesses are allowed to express their opinions on temperature, light, color, sound, quantity, distance, sanity health, strength, speed, weight, and many other kindred subjects. Stottler v. Railroad, 200 Mo. 107. (2) This case is unlike Koch v. Hebel, 32 Mo.App. 103, and other cases cited under appellant's second point of "Points and Authorities." In the Koch case the court held that there was evidence in the record of an express contract. In this case there is no such evidence--there is no evidence here that the parties had agreed on the amount of plaintiff's compensation. Plaintiff's right to recover in this case on an implied assumpsit is settled beyond controversy...