Rose v. Mays
| Decision Date | 02 November 1909 |
| Parties | MARY E. ROSE, Appellant, v. DAVID MAYS, Public Administrator, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
AFFIRMED.
Judgment affirmed.
O. T Hamlin and J. T. White for appellant.
(1) In this case the evidence was ample to submit to the jury the question whether the presumption of gratuity, which goes with the family relation, was overcome by proof of an agreement for compensation for the service rendered by plaintiff. Evidence to show that the recipient of the service intended to pay for the same and that the servitor expected pay, has always been held sufficient to establish such an agreement. Fry v. Fry, 119 Mo.App. 476; Stone v. Troll Admr., 134 Mo.App. 308; Shannon v. Carter, 99 Mo.App. 134; McMorrow v. Dowell, Admr., 116 Mo.App 289; Graham v. Rapp, 105 Mo.App. 590; Ramsey v. Hicks, 53 Mo.App. 190; Christenson v. McDermott, 123 Mo.App. 448; Weinberg v. St. Louis Cordage Co., 116 S.W. 461. (2) It is not necessary to prove the contract in such a case in all its terms, as it is in the case of contracts generally. It is sufficient to make out a case if the evidence shows an understanding, however indefinite in its terms, that compensation was intended and expected. And the understanding need not be proved by direct testimony, it may be inferred from circumstances. It is sometimes called an implied contract. Allen v. Allen, 101 Mo.App. 676; Ramsey v. Hicks, 53 Mo.App. 190; Cole v. Fitzgerald, 134 Mo.App. 17; Fry v. Fry, 119 Mo. 476; Lillard v. Wilson, 178 Mo. 145; Ronseik v. Boverschmidt, Admr., 63 Mo.App. 421; Dobbs v. Carter, 60 Mo.App. 320; Finnell v. Gooch, 59 Mo.App. 209. (3) In a case like this where the daughter had married and left home, and returned to her mother afterwards at her own request, the question of whether the family relation existed so as to raise the presumption of gratuitous service, is for the jury. Smith v. Myer, 19 Mo. 434; Fitzpatrick v. Dooley, 112 Mo.App. 171; Lillard v. Wilson, 178 Mo. 145; Truesdale v. Truesdale, 72 Mo.App. 155; Hart v. Hart, 41 Mo. 445.
W. D. Hubbard and G. W. Goad for respondent.
(1) The plaintiff, Mary Rose, and the deceased, Lillie Collins, were mother and daughter and lived together under the same roof and formed one domestic circle, thus forming the closest family relations, and if the mother rendered any services to her daughter, the law presumes such services to have been gratuitously rendered. Birch v. Birch, 112 Mo.App. 157; Grand Lodge v. McKinstry, 67 Mo.App. 82; Hoffman v. Grand Lodge, 73 Mo.App. 47; McMorrow v. Dowell, 116 Mo.App. 289; Fitzpatrick v. Dooley, 112 Mo.App. 165; Kostuba v. Miller, 137 Mo.App. 161; Shannon v. Carter, 99 Mo.App. 134; Miller's Appeal, 100 Pa. St. 568. (2) In order to overcome this presumption of law and recover compensation for such services, a contract providing for such compensation must be clearly shown. Fitzpatrick v. Dooley, 112 Mo.App. 165; Guenther v. Birkicht's Adm., 22 Mo. 439; Woods v. Lands, 30 Mo.App. 176; Wallace v. Dennys, Adm., 28 Ky. Law 478, 90 S.W. 1046. (3) Plaintiff, in order to prove a contract for compensation for any services rendered by her to deceased, must show both an intention on the part of Lillie Collins to pay and an intention on plaintiff's part to charge for such services at the time they were rendered. Guenther v. Birkichts, 22 Mo. 439; Morris v. Barns, 35 Mo. 412; Smith v. Myers, 19 Mo. 433; Whaley et al., Exr., v. Peak, 49 Mo. 80; Woods v. Lands, 30 Mo.App. 176; Buelterman v. Meyer, 132 Mo. 481. (4) Loose declarations to others, or even to the claimant herself, will not answer. Woods v. Lands, 30 Mo.App. 176; Louder v. Hart, 52 Mo.App. 377; Williams v. Hutchison, 5 Barb. S. C. 122; Reynolds v. Reynolds, 92 Ky. 556, 18 S.W. 517; Wayman v. Wayman, 15 Ky. Law, 374, 22 S.W. 557. (5) Expectation of receiving property by will is not sufficient. Surries v. Parsons, 5 Watts & Searg. 357; Osbourne v. Govnrs. of Gray's Hospital, 2 Strange 728; Louder v. Hart, 52 Mo.App. 377; Little v. Dawson, Exr., 4 Dallas 111; Price v. Price, 19 Ky. Law, 211, 39 S.W. 429.
This case arises upon the following account filed by plaintiff in the probate court of Greene county.
"The estate of Lillie Collins, deceased
to Mary E. Rose, Dr.
There was a trial by jury and a verdict for plaintiff for sixteen hundred ($ 1600) dollars. The administrator appealed. There was a trial by jury in the circuit court, where, at the close of the plaintiff's testimony, the court sustained a demurrer thereto, and judgment was entered for defendant.
Plaintiff has appealed from this judgment, assigning as error, the action of the court in directing a verdict for defendant. It is conceded that the first item--twenty-six ($ 26) dollars, is barred by limitation, and, that there is no evidence to sustain the second item of sixty ($ 60) dollars, and, that as to these items the judgment is proper. The only contention is as to the item of twenty-eight hundred ($ 2800) dollars for services. The evidence tending to show the relationship of the parties, their condition, surroundings and manner of living, during the time for which services are charged, developed this state of facts.
The plaintiff is the mother of the deceased. The deceased was married at the age of sixteen to Collins, and removed to Kentucky in 1892. A year or so later, deceased, Lillie Collins, wrote to her mother, who then lived at Winfield, Kansas, asking for money on which to return home. The mother sent twenty-six ($ 26) dollars, and Lillie returned to her mother, sick and in poverty. The mother, too, was very poor, having nothing except a little furniture. The mother and daughter continued from that day until the death of Lillie, in February, 1908, to live together as one family. The mother did most of the housework, the washing, cooking, etc. They remained in poor circumstances until the daughter Lillie came into possession of some money, the date of which does not appear, but presumably about 1899 or 1900, for, on February 13, 1900, she purchased a home in Springfield, Missouri, paying eight hundred ($ 800) dollars therefor. This home was comfortably furnished, they moved to it and lived there, except for one short interval, until the date of Lillie's death. The care of the home and the burden of the work was performed by the mother. Lillie was away from home for a considerable portion of the time, but for what purpose does not appear. She dressed stylishly; the mother dressed comfortably, and the home was transformed from one of poverty to one of comfort.
There was some evidence as to the value of the work performed by the plaintiff. Lillie died in February, 1908, leaving an estate of a net value, including the home, of about fifteen hundred ($ 1500) dollars. The plaintiff offered a great deal of testimony, in which witnesses detailed statements made by deceased in her lifetime, relative to a desire upon her part to compensate her mother for the labor she performed in the home, and, it is upon these statements alone that the plaintiff relies for a reversal of the judgment. Without detailing them in full we incorporate enough to show their general nature as follows:
In the presence of Mrs. Dowd, sister of the plaintiff, soon after her return from Kentucky, she said, in substance, to the plaintiff, To which the mother made no reply. At other times, she said to Mrs. Dowd, practically the same thing in the mother's absence. To Mrs. Petty, about six months before her death, she said, in substance, that she got the home in Springfield purposely for her mother a home--that her mother had stuck to her and cared for her, and she got this home for her because she had no one else to care for her--that her mother was the best woman in the world; just waited on her like she was a second babe--did all the housework, etc. Mrs. Buckmaster heard Lillie say to her mother, in effect, that the work was pretty hard on her, but she expected to pay her for it. No rely by the mother. She also stated to Mrs. Buckmaster that she wanted to leave the place clear of all incumbrance to her mother at her death, because, her mother, you might say, was just a slave to her, and she thought her mother was entitled to the place--that if she died first she intended for her mother to have the property because she had done so much for her--that she thought she could not do too much for her mother. To Mrs. Smithson she stated she thought her mother was the right one to have her property, and she wanted her to have it when she was done with it. She thought her mother had earned it, because she took care of her when she was sick. To Robert Smith and others she stated practically the same things. Lillie died from the effects of chloroform given preparatory to a surgical operation, and, to Dr. Fulbright, the evening before the operation, she said, "Doctor, if this operation is a dangerous one, I want to know it, for, if it is, I want to make a will and give all I have to my mother." He assured her the operation was not dangerous and the will was not made.
The foregoing, we think, fairly states the substance of the testimony as preserved in...
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