Smith v. Sims

• Decision Date: 11 February 1924
• Docket Number: No. 14900.,14900.
• Citation: 258 S.W. 1032
• Parties: SMITH v. SIMS
• Court: Missouri Court of Appeals

258 S.W. 1032

SMITH v. SIMS

No. 14900.

Kansas City Court of Appeals. Missouri.

February 11, 1924.

Appeal from Circuit Court, Boone County; Ernest S. Gantt, Special Judge.

"Not to be officially published."

Suit by Flossie Smith against Mansil Sims, administrator of the estate of John W. Kilgore, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 258 S. W. 1029.

McBaine & Clark and Paul M. Peterson, all of Columbia, for appellant.

Don 0. Carter, of Sturgeon, for respondent.

ARNOLD, J.

This is a suit to recover payment for services rendered John W. Kilgore and his wife during their lifetime. The cause originated in the probate collect of Boone county by the filing of the following claim against the estate:

"The Estate of John W. Kilgore Deceased, to Mrs. Flossie Smith, Dr.

                19—                             Dolls. Cts
                To working for, waiting upon and attend
                 ing to the said John Kilgore during his
                 lifetime, from the year 1906 to 1917, at
                 the sum of $200 per year.............  $2,200 00
                To waiting upon, nursing and caring for
                 said John Kilgore from Nov. 1921 to
                 March, 1923, at $50 per month........     300 00
                                                        _________
                   Total  ............................  $2,500 00
                

A trial to a jury in the probate court of said county resulted in a verdict for plaintiff in the sum of $2,500. On appeal to the circuit court of said county, it was tried de novo, on May 9, 1923. Plaintiff again prevailed, and the jury returned a verdict in the sum of $2,500. A motion for a new trial was unavailing, and defendant administrator appeals to this court. The facts disclosed by the record are as follows:

John Kilgore and his wife, Elizabeth, during their lifetime, lived on a farm a few miles south of the town of Sturgeon in Boone county. They were aged and infirm, and had no children. The wife died in 1916, and in March, 1922, John Kilgore died at Hot Springs, Ark., whither he had gone on account of failing health. A family named Stone had taken plaintiff to rear, her mother being dead, though her father was living. When she was 9 or 10 years old she was taken by the Kilgores to their home, and lived there until she was 18 years of age, at which time she was married to one Rozier Smith. The evidence shows that during all the time she lived at the home of the Kilgores she performed all kinds of work and labor on the farm. She milked the cows, plowed the fields, gathered the crops, hauled and scattered manure, repaired fences, herded stock, washed, ironed, and cooked, and nursed both the Kilgores, as such services were required, until they died. In fact, she did all the work usually required of a farm hand, as well as that of a household servant and nurse. At no time during her residence on the farm did the Kilgores employ a farm hand or household servant. Upon her marriage in 1915, plaintiff left the Kilgore home and went to live with her husband in Kansas City, Mo., where they remained about three months and then came hack to the farm, at the request of the Kilgores. There was an understanding that plaintiff's husband was to operate the farm for a share of the crop and that they were to live in the house with the Kilgores. Plaintiff did the work of the household. At this time, the evidence shows, Mrs. Kilgore was almost totally blind and helpless, and had to be cared for like a baby until her death, and these services were performed by plaintiff.

Plaintiff and her husband stayed with the Kilgores three years and then returned to Kansas City where they remained until November, 1921, when they returned to the farm, at the solicitation of Mr. Kilgore. The husband of plaintiff had a written contract with Mr. Kilgore at the time for the operation of the farm. Mr. Kilgore was then ill and feeble, requiring and receiving the nursing and care of plaintiff, up to the time he went to Hot Springs, where he died about a month later.

The first assignment of error is that the court erred in failing to sustain the demurrer offered by defendant at the close of plaintiff's evidence and again at the close of all the evidence. As a basis for this assignment, defendant urges there was no evidence that the services for which remuneration is claimed were rendered with the intention to charge therefor, on the part of plaintiff, or that they were accepted by John Kilgore with the intention, on his part, of paying for them. Also, in this connection, it is urged that the circumstances under which the services were performed and accepted were not such as to charge Kilgore with knowledge that plaintiff was rendering services for which she expected to charge. It is argued that (1) prior to the marriage of plaintiff on May 9, 1915, the family relationship existed between plaintiff and the Kilgore family ; (2) that her return to the Kilgore home subsequent to her marriage was under such circumstances as to impose upon her the duty of proving an express contract between the parties that she was to be paid for her services, before she can be allowed to recover in this action.

At this point, it is proper to consider the fact that defendant introduced no evidence in the case, but stood on his demurrer. No evidence was introduced to show the services were not performed as alleged. or that they were not of the value claimed. In considering the question of the demurrer, the evidence most favorable to plaintiff's cause of action must be regarded as true, and every proper inference deducible therefrom resolved in plaintiff's favor. Therefore it becomes necessary to consider the evidence of record as it applies to plaintiff's claim.

Within a quarter of a mile of the Kilgore home, there lived, for a period of 26 years, one Columbus Waterfield and his wife, Roberta, both of whom testified in this case. Mrs. Waterfield stated that on the day John Kilgore went to the home of the Stone family to get plaintiff to go to his home he stated to the witness that he expected to see to it that plaintiff was his full heir, and that she would be well paid; that she had heard both John Kilgore and his wife make that statement before they took plaintiff to their home, and many times afterward; that these remarks were made in the presence of plaintiff, and that plaintiff had replied that she had earned pay for her services.

Columbus Waterfield also testified that he had heard Kilgore say many times that he was going to see that plaintiff was well paid, and that Kilgore had often talked about paying plaintiff for her services; that some of these statements were made in the presence of plaintiff and that plaintiff replied that she had earned it. This witness further testified that Kilgore had stated that plaintiff saved him from hiring a hand, and that he would me that she was well paid. Further, both of these witnesses testified that Kilgore stated to them that he did not pay plaintiff when she married because he first wanted to learn whether plaintiff's husband could accumulate anything.

Rozier Smith, plaintiff's husband, testifying for plaintiff, stated that on various occasions Kilgore stated he was going to see that plaintiff was paid for what she was doing around there; that at one time deceased had stated that he would deed plaintiff part of his land. This witness further testified that while Kilgore was in Hot Springs, during the month immediately preceding his death, he wrote plaintiff asking her to stay on the place until his return, and he would make everything right.

The testimony of another neighbor, W. W. Wood, is to the same effect, to wit, that from the time plaintiff went to live in the Kilgore home to the time of Kilgore's death, Kilgore had expressed an intention to pay her for her services. This man's testimony further tends to show that plaintiff felt that she had earned and expected to receive payment.

We think there is no room for reasonable doubt that the testimony of these witnesses is sufficiently substantial to require submission of the case to the jury, and that the court committed no error in refusing the demurrer.

In Stone v. Troll, 134 Mo. App. 308, 114 S. W. 82, it is said:

"We think this evidence clearly shows he intended to compensate his son for the services. The evidence of an intention on plaintiff's part, to charge deceased for taking care of him is not so clear, but the declarations of deceased, that he intended his son should have everything he possessed, and that he intended to give him his farm in Minnesota, is some evidence of an understanding between the father and son that the latter should be compensated for his services"—citing Hayden v. Parsons, 70 Mo. App. 493; Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74.

See, also, Cowell v. Roberts, 79 Mo. 218. This court held in Cupp v. McCallister, 144 Mo. App. 111, 129 S. W. 435:

"The account is for services rendered to the deceased for the last five years of her life. In passing on a demurrer to the evidence in behalf of the plaintiff, not only must she receive the benefit of all direct substantial evidence in her favor, but every reasonable inference to be drawn therefrom should be resolved for her benefit. Charlton v. Ry. Co., 200 Mo. l. c. 441; Holmes v. Ry. Co., 190 Mo. 98; Knorpp v. Wagner, 195 Mo. l. c. 661. In this case plaintiff's...