Savage v. Michalon's Estate

• Court: Missouri Court of Appeals
• Writing for the Court: McCullen
• Citation: Savage v. Michalon's Estate, 176 S.W.2d 626 (Mo. App. 1944)
• Decision Date: 04 January 1944
• Docket Number: No. 26423.,26423.
• Parties: SAVAGE v. MICHALON'S ESTATE.

176 S.W.2d 626

SAVAGE v. MICHALON'S ESTATE.

No. 26423.

St. Louis Court of Appeals. Missouri.

January 4, 1944.

Rehearing Denied January 21, 1944.

Appeal from Circuit Court, St. Francois County; Norwin D. Houser, Judge.

"Not to be reported in State Reports."

Proceeding on a claim for personal services by Henry Savage against the estate of Dean M. Michalon, deceased, Christ L. Stamel, administrator. From a judgment for plaintiff, defendant appeals.

Affirmed.

John H. Keith and W. R. J. Hughes, both of Ironton, for appellant.

J. Arthur Francis, of Ironton, and Arthur T. Brewster, of Pevely, for respondent.

McCULLEN, Judge.

This proceeding was instituted by respondent, Henry Savage, hereinafter referred to as plaintiff, in the Probate Court of Iron County, Missouri, on May 2, 1942, as a claim for $5,400 for services alleged to have been rendered by him to Dean M. Michalon, deceased, during a period from April 7, 1910, to November 2, 1941. An appeal was taken to the Circuit Court of said county and thereafter the cause was sent, on change of venue, to the Circuit Court of St. Francois County where a trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $4,000. Following an unavailing motion for a new trial, defendant duly appealed to this court.

Defendant-appellant contends that the court erred in refusing to give to the jury his requested instructions in the nature of demurrers to the evidence at the close of plaintiff's case and at the close of the whole case. Under the long established rule applicable in considering such a contention, we shall state the testimony in the light most favorable to plaintiff.

Carl Trammel, sixty-three years old, testified that he had lived in Iron County nearly all his life; that he knew Mr. Savage for almost fifty years; that he lived in the neighborhood of Hogan, Missouri, during 1909 and 1910 and saw Savage in the summer of 1910 around Hogan and around Dean Michalon's place; that Savage was working for Dean Michalon at one time, during the month of April, 1910; that he saw Savage working on Michalon's farm in the spring of that year; that the witness had a conversation with Michalon about fixing a fence and that Michalon said, "I will send Henry down," and the witness supposed Henry (meaning Savage) came, as the fence was fixed; that the witness saw Savage doing chores for Dean and working on Dean's place.

C. W. Holloman testified as a witness for plaintiff that he was seventy-three years old and knew plaintiff ever since they were both boys; that he knew him in 1910; that plaintiff was around Hogan there working and the witness thought he was working for Michalon; that he didn't know when Henry started to work for Michalon, but knew that he worked there in 1941 doing general farm work, and the witness saw him plowing corn, cutting hay, driving cattle and herding goats, and cutting and hauling wood; that plaintiff worked both in summer and in winter; that he saw Henry and Dean working out in the field together and gathering corn; that Michalon's farm was about 330 acres; that Michalon was also a stock man, and, in 1941, had about seventy-five head of cattle, cows and steers besides his goats. The witness remembered that Savage left and went to Texas but didn't remember the year or how long he stayed away, but knew that he came back ; that Michalon told the witness he had sent for Henry and was going to pay his way back, but didn't say why he was sending for him—the witness didn't remember how many years ago that was. The witness further testified that he had been farming all his life and had occasion to hire men to work for him on his farm in the locality of Hogan; that he knew what would be the customary and reasonable compensation in the hiring of farm hands in that community; that the reasonable value of farm labor there for the kind of service he saw plaintiff render would be $1 a day in 1910, 1911, 1912, and all along through 1935 and in 1941, about the same with board and lodging.

On cross-examination the witness testified that in 1911 he lived on a farm adjoining Dean's place and he could see plaintiff every day or two; that in 1912 he knew plaintiff was working there doing farm work, plowing and such as that, "that Henry never loafed much"; that he remembered Savage going to Texas and coming back; that the witness thought that Savage worked on an average of three days a week; that he couldn't state the exact time that Savage worked for Michalon, but that Savage was there and worked; that he remembered Savage being away only once and that Savage worked for himself a day or two at a time when he got through with the crop; that Dean never told the witness about any arrangements with Savage except "that he wouldn't give Henry any money as he would drink it up." The witness further testified that "Henry was a man who would work, the best man on the farm"; that Savage worked for the witness a day or two at a time and the witness paid him for it; that the witness thought that was in 1940. The witness was asked on cross-examination :

"Q. Isn't it true that at least ninety per cent of the time or more, during the years from 1910 to 1941 in November, when Michalon died, Savage was not working for him at all, was he? The biggest part of the time. A. No. He was working for him the biggest part of the time."

Further testimony by the witness was to the effect that Dean had told him that all he gave Henry was his board and clothes, for if he gave him money he would drink it up.

Newt Warren testified on behalf of plaintiff that he had lived in Iron County for fifty-two years and was brought up near Chloride, Missouri, about two and one-half miles east of Hogan, Missouri ; that he knew Savage all of his life and also knew Dean Michalon for about forty-two years; that he couldn't give dates, but that Savage must have worked for Michalon for about twenty-five or twenty-six years; that Henry made Michalon's place his home and did the farm work for Michalon; that the witness had seen Henry plowing and cutting hay and hauling hay during the summer months; that he saw him herd cattle and goats and doing the feeding around during the winter; that he knew of at least one occasion that Savage left Michalon's place and went away; that he had a conversation with Michalon in reference to Savage about three and one-half years ago at Michalon's store. At this point the witness testified:

"Q. What did he say to you? Did he say, `Newt'? Now, say what he said. A. He said, `Newt, you go and see Henry and see if he will come back and stay with me.' He said, `I can't get along without Henry.'

"Q. What did you say? A. I said, `I will go see him, Mr. Michalon, but I don't know whether it will do any good or not.'

"Q. What did Dean say then? A. Well, he said, `You go see him and come back and tell me what Henry said.'"

The witness further testified that he reported back to Michalon what Savage said and that Michalon said he would pay Savage; that he had been paying Henry $1 a day but never paid him his money yet, that if he did Henry would get drunk on it, and he was keeping the money until Henry got old; that the witness went back and saw Henry the second time at Dean's request and that Dean wanted the witness to tell Henry that he would pay him if he would come back; that the witness delivered that message to Savage and that Henry came back to Michalon within a few days and the witness stopped in about a week later and Henry was there.

Clarence Swearingim testified on behalf of plaintiff that he lived at Chloride, Missouri, four and one-half miles from Hogan, Missouri, and knew Savage ever since he was big enough to know anybody; that he also knew Michalon that long; that he had a conversation with Michalon about Savage's services about 1928, 1930 and 1936, along there; that Michalon said that Henry was in Texas and that he, Michalon, had sent Henry a ticket to come home on; that Michalon also said, "I can't do without Henry. He takes care of my stock here." The witness didn't remember the date of said conversation, but it was while Henry was in Texas ; that when the witness was buying timber at Glover and Henry was making ties and bringing them in, Michalon came down and told the witness to keep all the checks for him, write all the checks for him, that he (Michalon) was taking care of Henry's money.

Andy Webb testified on behalf of plaintiff that he knew Savage ever since 1913 and knew Michalon from about the same date ; that the witness lived in the Hogan community from about 1913 to 1936; that while he was there he saw Savage on Michalon's place working on the farm, plowing and cutting corn, putting up hay, getting in wood, and doing other farm work; that that was just about every year from 1913 to 1936, except that Henry would be gone off the farm for short periods, not very long at a time; that Michalon told the witness at different times that he was paying Henry $1 a day and his board, but said, "I am saving his money until he gets old."

On cross-examination the witness testified that he saw Gus Michan working on Dean's farm from 1915 to 1921 and that Michan lived with Dean at that time; that Savage lived there too the biggest part of the time; that Savage lived on a place that he leased from Dean back in the field; that he lived there part of the time and part of the time with Dean; that part of the time Dean had three men staying at his place, Gus Michan, Tom Costello and Henry Savage; that Savage worked on Dean's farm during the time that Costello and Michan worked there.

Mrs. Ed. Swearingim testified that she lived near Hogan, Missouri, most of her life and was a niece of Henry Savage; that Savage made his home with her a part of the time when he left Michalon's in 1940; that he remained four or five months; that Michalon came to the witness's place at that time—three times while her uncle, Henry Savage, was there—and...