Scarlett v. People's Bank & Trust Co.

• Decision Date: 24 June 1935
• Docket Number: 25624.
• Citation: 182 Wash. 257,46 P.2d 1045
• Court: Washington Supreme Court
• Parties: SCARLETT v. PEOPLES BANK & TRUST CO. et al.

46 P.2d 1045

182 Wash. 257

SCARLETT v. PEOPLES BANK & TRUST CO. et al.

No. 25624.

Supreme Court of Washington

June 24, 1935

Department 1.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by Russell Scarlett against the Peoples Bank & Trust Company and another, as executors of the last will and testament of Lily G. Neufelder, deceased. Judgment for defendants, and plaintiff appeals.

Affirmed.

Hyland Elvidge & Alvord, of Seattle, for appellant.

Kerr McCord & Carey and Green & Burnett, all of Seattle, for respondents.

TOLMAN Justice.

The appellant, as plaintiff, brought this action to recover upon an oral promise or contract made, as he alleges, by Lily G Neufelder in her lifetime, by the terms of which the promisor agreed that if the plaintiff would remain in her employ as a chauffeur and personal attendant until her death she would bequeath to him by her last will the sum of $5,000. The complaint alleges the failure to perform the promise, the presentation to the executors and the rejection by them of a claim therefor, and that such rejection occurred within thirty days preceding the commencement of this action. The answer denies that any such promise or contract was ever made.

A jury was impaneled to try the cause, the plaintiff produced evidence and rested, whereupon the defendants interposed a challenge to the sufficiency of the evidence and moved for judgment in their favor upon the merits. The challenge was sustained, the motion granted, and a judgment followed dismissing the action with prejudice. The plaintiff has appealed.

The law applicable to cases of this kind is well settled in this jurisdiction. In Henry v. Henry, 138 Wash. 284, 244 P. 686, 687, after reviewing our previous decisions, we said 'We are prepared to make, and are justified in making, a statement even more stringent than that, and to hold that one seeking to establish an oral contract, whereby property of the deceased is sought to be taken, must establish all the elements of the contract and a right to have it enforced beyond all reasonable doubt. Without such a rule, no estate of any considerable size is safe from claims that it has been devised and bequeathed by word of mouth.'

We have not since in anywise modified that rule.

But, appellant contends, notwithstanding the rule, that in an action at law tried to a jury, such as this, if there be substantial evidence, it is for the jury, under a proper instruction by the court, to determine whether or no the evidence in the particular case measures up to the required standard.

Assuming, without deciding, that in a proper case such would be the correct practice, we have left for decision here the question of whether there was any substantial evidence in this case to go to the jury.

There are, of course, many incidents which have a more or less remote bearing upon the question, properly received in evidence, as disclosed by the record, which cannot be here detailed. It must suffice to say that the appellant entered the employ of Mr. and Mrs. Neufelder as a chauffeur about the year 1920, that both trusted him and became fond of him. After the death of Mr. Neufelder in 1923, appellant continued in the employ of Mrs. Neufelder, and she came still more to trust and depend upon him. Within a year or so after Mr. Neufelder's death, according to the testimony of the nurse who was an attendant upon Mrs. Neufelder, the following occurred:

'Q. What, if anything, did she say about Russell when she was at the Northcliffe? A. Well, she said--I was at that time taking care of her at night. She called me--Miss MacRea was at lunch, and she called me and said that she had made an agreement with Russell, had a talk with him, that she wanted him to stay with her as long as she lived, and that she

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