Ryans v. Hospes

• Decision Date: 11 March 1902
• Citation: 67 S.W. 285,167 Mo. 342
• Parties: RYANS v. HOSPES et al.
• Court: Missouri Supreme Court

67 S.W. 285

167 Mo. 342

RYANS v. HOSPES et al.

Supreme Court of Missouri, Division No. 2.

March 11, 1902.

MASTER AND SERVANT — BODY SERVANT AND NURSE — SERVICES — PAYMENT — IMPLIED PROMISE — ACTION — EVIDENCE — EXPERT NURSES — VERDICT — EXCESSIVE — PRESUMPTION OF PAYMENT — APPEAL AND ERROR — REVIEW — QUESTION PRESENTED BY AFFIDAVITS — ERRONEOUS INSTRUCTION GIVEN AT INSTANCE OF PARTY COMPLAINING — TRIAL — IMPROPER ARGUMENT — PLEA OF PAYMENT — AMENDMENT AFTER CLOSE OF EVIDENCE — EXECUTORS AND ADMINISTRATORS — CLAIM AGAINST ESTATE — INTEREST.

1. Plaintiff served deceased, who was worth about $400,000, with no family, for at least 12 years, as his body servant and nurse; and, according to deceased, there was no express or special agreement as to what should be paid therefor, but "he furnished plaintiff all that was necessary for his personal expenses, and was to set him up handsomely when he got through with him." Deceased often expressed his partiality for plaintiff, and his recognition of the invaluable character of plaintiff's services; once saying that a question of money would not be an inducement to part with his services. About two years before his death, deceased gave plaintiff two sums, of $400 and $140, respectively, to pay for a home, a mule, and some farm implements, which the evidence showed were pure gratuities, without reference to payment for services. Held, in an action against the estate for the services, that defendant's demurrer to the evidence on the ground that, there being an express agreement, the law would not imply a promise to pay plaintiff for his services, and that the personal expenses furnished plaintiff and the gifts were a performance of the express agreement, was properly overruled.

2. Plaintiff having served deceased for from three to six months each year for the first three or four years, and from 1889 until 1898, continuously, as a companion, except short vacations when sick, during which time deceased was feeble, needing constant attention, and professional nurses and those having experience in paying for such services having testified that the services were reasonably worth $3 per day, and during the last six months $5 to $6 per day, a verdict for less than $1,000 a year is not so excessive, in view of deceased's wealth and want of family, as to justify the court, on appeal, in declaring the verdict to be the result of passion or prejudice.

3. No plea of payment having been made in the trial court, and the deceased having paid plaintiff's personal and traveling expenses, dispensing with plaintiff's need of wages for support, his family not being dependent thereon, and having held out as an incentive to good and faithful service a handsome remuneration at the end, no presumption of payment arose because deceased was very wealthy, and there was no reason why he should not have paid plaintiff from time to time.

4. An erroneous instruction given at the instance of a party cannot be complained of by him on appeal.

5. Under Rev. St. 1899, § 3705, providing that creditors shall be allowed to receive interest at the rate of 6 per cent. per annum on accounts after they become due and demand of payment is made, a creditor of a decedent whose claim is allowed against his estate is entitled to 6 per cent. interest thereon from the date of demand of payment of an administrator pendente lite.

6. Remarks of counsel in argument cannot be preserved by affidavits so as to be before the court on appeal.

7. In an action on a quantum meruit against the estate of a decedent for services, it was not unfair argument for plaintiff's counsel, speaking with regard to a payment claimed by the defendants, to ask if the jury had a single book or memorandum from the deceased's effects indicating that any such payment had been made, and to tell them to remember that those books were not in plaintiff's possession, but within that of the defendant executors, or administrator pendente lite; it being a fair presumption that whatever books or papers the deceased had kept or left would be in the hands of the administrator.

8. Where, in an action on a quantum meruit against the estate of a decedent for services, defendant had offered no evidence of payment, and when offering evidence of gifts by the deceased to plaintiff, to which plaintiff objected that there was no plea of payment, expressly disclaimed any effort to prove payment, but stated that it was offered on the theory that the services were a gratuity, for which plaintiff never intended to charge, it was proper for the court to refuse to let defendant amend his answer by setting up a plea of payment after the close of all the evidence, as the amendment was not for the purpose of conforming the pleading to the proof.

9. In an action on a quantum meruit against the estate of a decedent to recover for services rendered to decedent by plaintiff as body servant and nurse, it was proper to permit expert nurses who assisted in nursing decedent, and who saw the nature of the services rendered by the plaintiff, to state the value of his services.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by Wyatt Ryans against Richard Hospes, administrator pendente lite, and others as executors of the last will, of Charles H. Bradford, deceased. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is an action at law, commenced on November 18, 1898, upon a quantum meruit for services rendered by plaintiff as the body servant and nurse of Dr. Charles H. Bradford —

                From July 10, 1889, to August 1
                  1897, at $75 per month (8 years
                  and one month) .......................   $7,275 00
                And from August 10, 1897, to April
                  20, 1898, at $100 per month...........      833 33
                                                           _________
                And credited with $735, paid on account
                  ......................................   $8,108 33
                

— Showing a balance due of $7,373.33. The answer was a general denial. On March 11, 1899, the jury rendered a verdict for plaintiff for $7,605.33, and from the judgment thereon defendant appeals.

Dr. Bradford died in the city of St. Louis on or about the 21st day of April, 1898, leaving a last will, which was admitted to probate, in which he appointed Jesse L. Boogher and Howard Blossom his executors. They accepted the trust and duly qualified about May 26, 1898. A contest of said will was begun in the circuit court, and thereafter, on or about July 6, 1898, the said executors were removed, and Richard Hospes was appointed administrator pendente lite, and qualified as such, and was in charge of said estate when this action was commenced. Dr. Bradford left an estate of the value of about $400,000, of which there was $285,923.23 of personal estate. Dr. Bradford was 78 years old at the time of his death. It appears that he had no wife or children, but was married about the year 1886 to Mrs. Cochran, of Eufaula, Ala., from whom he was subsequently divorced in 1889 or 1890. Mrs. Cochran was a sister of Tandy W. Toney, of Eufaula, who had resided in that city for more than 40 years. It was at his house that Dr. Bradford first met the plaintiff, Wyatt Ryans, who was a negro servant in Mr. Toney's family. Prior to 1886 the plaintiff had spent three-fourths of his life in Mr. Toney's family as servant and nurse. Having served Dr. Bradford on one of his visits to his brother-in-law, the doctor was so pleased with him that he asked Mr. Toney if he had any objections to his taking Wyatt away with him; and, Mr. Toney assenting, he employed the plaintiff, who served him as body servant and nurse from that time more or less every year until the doctor's death, in 1898. The testimony of Mr. Tandy, on whose premises plaintiff's family continued to reside after he went into Dr. Bradford's employment, was that "Wyatt first went with the doctor in 1886, and for the first four years after 1886 he was with him from three to six months in the year," "but that since then he had given up all of his business for Dr. Bradford, and was subject to his orders until the latter died," in April, 1898. The services charged for in this action begin July 10, 1889, and do not include the years prior thereto. As to the continuity of his service, and its acceptability to Dr. Bradford, and its arduous and exacting nature and value, it can best be told by the witnesses themselves:

Mr. Louis Harper testified: He had been for 10 years register clerk at the Southern Hotel. Had known Dr. Bradford for 20 years before his death. That for 8 or 9 years the doctor would spend several months at the Southern, and during all that time was accompanied by Wyatt, the plaintiff, as his valet, who waited upon him exclusively. That the doctor was 78 years old when he died, and had during his acquaintance with him been a delicate man, and grew more and more so as he grew older, until the last time he was at the Southern he had to be wheeled about in a chair. He was finicky about his wants, and always demanded and got one of the most expensive rooms in the hotel for himself, and a room adjoining for Wyatt. That Wyatt's services were those that a servant should give, — "good, perfect attention, watching him at all times."

Dr. J. B. Coryell, a physician, testified: He was called in April in consultation with Dr. Kier, and found Dr. Bradford very feeble, — perfectly helpless; could not take care of himself, nor attend to the wants of nature. That Wyatt was present as nurse and body servant. That he lifted the doctor around in bed, gave him his medicine, and attended to all his wants. Had to attend to him as one would a little child, with reference to his going to his stool, etc. Dr. Coryell testified he was familiar with the value of such services as he saw Wyatt performing for Dr. Bradford, and they were reasonably worth $150 a month.

Patrick Smith, head waiter at the Southern Hotel for 4½ years, and employed as a waiter about the hotel for 12 or 13 years, said he...