Sowers v. King
| Decision Date | 23 December 1924 |
| Docket Number | 1141 |
| Citation | 32 Wyo. 167,231 P. 411 |
| Parties | SOWERS v. KING [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied 32 Wyo. 167 at 177.
ERROR to District Court, Lincoln County; JOHN R. ARNOLD, Judge.
Action by W. L. King against Rebecca M. Sowers, Administratrix of the Estate of Samuel Scott Sowers, deceased. Judgment for plaintiff, and defendant brings error.
P. W Spaulding for plaintiff in error.
The petition does not state a cause of action; verdict is not sustained by sufficient evidence; the court should have directed the verdict for defendant; the verdict is speculative; the undertaker's charge was unreasonable. Petition does not allege the charge to be a reasonable value for the services, hence it was not chargeable against the estate; Golden Gate Co. v. Taylor, 168 Cal. 94, 141 P. 922. The action was not one on a contract where prices and other terms were agreed upon; demand must rest upon the necessity of services and expenses and the reasonable charge and value therefor which must be alleged as well as proved. The services rendered were worthless; the casket furnished was not the casket ordered; the evidence shows that plaintiff below did not know what kind of a casket he sold, furnished or charged for.
J. A Christmas for defendants in error.
The petition fully stated the nature of the claim which is sufficient, 31 Cyc. 101; Shea v. Nililma, 133 F 209; C. B. & Q. Co. v. Pollock, 16 Wyo. 321. Funeral expenses are a prior claim, 6872 C. S. Hopgood v. Houghton, 10 Pick. 154; Pease v. Crisman, 64 N.E. 91. The estate was appraised at $ 22,536.00. Plaintiff was called from Driggs, Idaho to Jackson, Wyoming to perform, as directed, and expended a large sum of money in addition. A claim for funeral expenses is not required by the statutes to be presented to the administrator for approval, hence the three month limitation within which action may be brought after rejection does not apply; Porter v. Lewis (Calif.) 55 P. 783.
Samuel Scott Sowers died at his residence near Jackson, on the 18th day of June, 1920, leaving a widow, the plaintiff in error in this case, and a minor son, eight years old. The widow authorized a message to the defendant in error, W. J. King, an undertaker doing business at Driggs, Idaho, asking him to come to the Sowers ranch, bring with him a black casket, and be prepared to embalm the body for shipment. The defendant in error at once employed a local garage to take him and the casket and necessary equipment to the Sowers ranch. Owing to the muddy condition of the roads at this season of the year in this locality, they did not arrive at the ranch home until that evening, spending all day in making the trip of about forty two miles, it being necessary to be drawn by team over the divide between Driggs, Idaho, and Jackson, Wyoming.
Arriving at the Sowers ranch, a son of the plaintiff in error, by a former marriage, met the defendant in error and informed him that because of the sudden fatal termination of the illness of his step-father, his mother was in no condition to do business and had asked him to make all the necessary funeral arrangements. It was then arranged between him and the undertaker, that the body be taken to Jackson that night, and the following day to Driggs, Idaho, and be there prepared for shipment to the former home of the decedent in Harrison, Ohio.
Because of the condition of the highways it took all of the following day for the undertaker to make the return trip. The following morning the undertaker and the son had some conversation over the telephone between Driggs, Idaho and Victor, Idaho, where he and his mother had arrived preparatory to making the trip to Ohio with the body. It was then arranged in this conversation that because of the condition of the body it be placed in a metallic casket. The undertaker met the funeral party at the train at Driggs, with the body, which was taken to the former home of the decedent and there buried.
Three Hundred and thirty dollars were paid on the undertaking bill at the time he received the body. The total undertaking bill, including tickets for the body of the deceased, and escort to Harrison, Ohio, including an auto charge to the Sowers home and return, of Eighty Dollars, and the team hired to pull the car over the divide on each trip, of $ 21.00, amounted in all to Twelve Hundred and twenty nine Dollars and seven cents, no part of which has been paid except the Three Hundred and Thirty dollars above.
On the 23rd day of September, 1920, the undertaker presented a claim in due form to the administratrix of the estate, claiming a balance due of eight hundred and ninety dollars and seven cents. This claim was rejected and, thereafter, on the 9th day of December following, this action was brought against the plaintiff in error as administratrix of the estate to recover the balance claimed to be due.
The petition is the ordinary petition on an account, with the added allegations of the presentation of the bill to the administratrix and its rejection, and the further allegation: "That the plaintiff is informed and believes, and upon such information and belief alleges that the said defendant as such administratrix, has assets in her hands applicable to the payment of plaintiff's claim, sufficient to pay the same, and that said assets can be applied to the payment of said claim without materially affecting the rights of others entitled to priority or equality of payment with said plaintiff."
The answer admits the appointment of the administratrix, the presentation of the claim to her for allowance and its rejection, and denies the other allegations of the petition, and then alleges in substance that the plaintiff so negligently and unskillfully failed and omitted to properly prepare and embalm the body of Samuel Scott Sowers, deceased, for burial, and to carefully and securely enclose and encase the same in a casket, that said body in three days after death of said deceased, emitted extensively such disagreeable and unpleasant odors that the train crew on the railroad, on which it was being transported, protested against further carrying the body and threatened to remove the same from the train, and that when it reached its destination in the State of Ohio, about four days after his death, it was in such a condition because of the defective embalming and preparation, and emitted extensively such disagreeable and unpleasant odors and gases, that the funeral services had to be held out of doors, and the mourners could not view the remains of the deceased * * * and for a further defense to the petition, defendant alleged that the sum paid by her to the plaintiff as alleged in his petition, to-wit: the sum of Three Hundred and Thirty Dollars, is greatly in excess of the expenses actually incurred and services rendered by plaintiff, as alleged in his petition.
The reply thereto is a general denial. The case was tried to a jury. The jury found in favor of the plaintiff and fixed the amount of his recovery in the sum of Five Hundred and Forty Four Dollars and eighty two cents.
The plaintiff in error seeks to reverse the judgment of the lower court on the sole ground that the petition nowhere alleges that the funeral expenses was a reasonable charge in view of the condition in life of the decedent and of the value of his estate.
Funeral expenses or expenses necessary for a decent burial of the decedent's body are not properly a claim against the estate in the sense that a claim is an obligation contracted or incurred by the decedent. Some courts and text writers prefer to call it a part of the expenses of administration. However, it is not properly a part of the expenses of administration. It is rarely contracted by the administrator or executor of the estate. Necessarily in most cases the funeral must have taken place before the appointment of the executor or administrator. Funeral arrangements are ordinarily taken care of and arranged by the near relatives and friends of the decedent, sometimes by a stranger, or by the undertaker himself. When reasonable, in view of the size of the estate and the condition in life of the decedent, the expenses of a Christian burial are made a claim against the estate, by implication of law.
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