Staiar's Adm'r v. Netter

• Decision Date: 27 April 1923
• Citation: 250 S.W. 89,198 Ky. 788
• Parties: STAIAR'S ADM'R ET AL. v. NETTER.
• Court: Kentucky Court of Appeals

250 S.W. 89

198 Ky. 788

STAIAR'S ADM'R ET AL. v. NETTER.

Court of Appeals of Kentucky.

April 27, 1923

Appeal from Circuit Court, Owen County.

Interpleader by Manlius Netter, in a suit for the settlement of the estate of T. W. Staiar, deceased. On an express contract by deceased to make provision for Netter in return for services rendered. Judgment for Netter, and the administrators appeal. Reversed.

J. G Vallandingham, of Owenton, Conrad H. Syme, of Washington, D C., and S.D. Rouse, of Covington, for appellants.

Cammack & Baker, of Owenton, and H. C. Faulkner, of Hazard, for appellee.

SAMPSON C.J.

In January, 1918, Tobias W. Staiar died testate, survived by Kate Rousseau, his only child. She lived in Washington City. Her father had given up his home in Owenton, Ky. in December 1917, and had gone to Washington to make his home with his daughter. He was then a very old man. At the time of his death he was 102 years of age. Only a short time before Staiar's death his wife, who was much younger than he though quite an old lady, died at their home in Owenton. This home consisted of about 53 acres of land in the suburbs of the county seat, and in addition to the mansion house there was at least one other residence. In this tenant house lived appellee, Manlius Netter, a negro, who acted as the body servant, coachman, gardener, and man of all work to both Staiar and his wife from some time prior to 1902 up to the time of their death. For his services he received $18 per month up to June 1, 1911, and $20 per month thereafter, except that Staiar for some unexplainable reason did not pay him for the month of February in each year. For each payment for services Staiar took a receipt from Netter.

After the death of Staiar and the appointment of his administrator, a suit was commenced for the settlement of the Staiar estate. While this action was pending appellee Netter interpleaded, setting forth that the estate of Staiar was indebted to him in the sum of $3,500 for services performed by him to the deceased, Staiar, and his wife, under an express contract whereby he was to work for, wait on, and serve both Staiar and his wife from the time of the making of the agreement, several years before the death of Staiar, until their death, for which Staiar agreed and promised to pay him, in addition to the monthly stipend set out above, a house and lot and a sufficient sum of money to keep Manlius in reasonable comfort the balance of his days; that in pursuance to said contract appellee did remain with and serve both Staiar and his wife until she died, and continued until Staiar died, but that Staiar had violated his contract and agreement by failing to will or deed him the house and lot, or to give him or provide for him having a sufficient sum in money to support and take care of appellee the balance of his life; that during his service to Staiar and wife appellee performed divers and sundry services of a personal nature, some of which were extremely difficult, and others obnoxious and disagreeable, especially when the said Staiars were sick and unable to take care of themselves; that Mrs. Staiar was for some months before her death afflicted with cancer, which rendered her unable to take care of herself, and which gave off very offensive, nauseating odors, and rendered appellee's duty very burdensome and disagreeable; that the services performed to Staiar, while he was sick and afflicted with bowel and kidney trouble, were nauseating and extremely unpleasant; that he performed these services, relying upon the agreement and promise of the said Staiar to give him a house and lot and a sufficient sum of money to take care of him the balance of his days, and that but for said contract he would not have remained with Staiar, but would have accepted employment elsewhere, as he had the opportunity to do at much better wages some years previous to the death of Staiar.

The administrator denied the averments of the petition in so far as the express contract is relied upon, and pleaded that the appellee received in full his wages each month, and the said wages, receipts for which were produced, were in full of all services up to the time of the payment of the same, which precluded the idea of an express contract such as appellee Netter asserted. Issue being joined, appellee Netter, plaintiff below, called several persons as witnesses to prove the express contract alleged in his petition. By these witnesses he proved in a more or less definite way that Staiar had promised and agreed with appellee Netter to give him by will or deed a house and lot and a sufficient sum of money to support him the balance of his life. Most of these witnesses were servants about the Staiar premises, and heard conversations between Staiar and his man, Netter, concerning the employment and wages and other compensation which he was to have. He proved that, some years before the death of Staiar, appellee, finding the burdens of his position increasing with the age and feebleness of his employer, decided to quit the employment of Staiar and to take employment elsewhere. When this came to the ears of Staiar and his wife, they besought Netter to remain with them and to continue to serve them, and they told appellee they could not do without him, and if he would change his mind and continue with them and serve them that Staiar would not only pay him the same wages he was then paying him, $20 per month, but would in addition give Manlius a house and lot and a sum of money sufficient to take care of him the balance of his life; that Manlius accepted this proposition from Staiar, and agreed to remain with Staiar and to serve him until the end of the life of Staiar and his wife, and that he did so, but that Staiar did not make provisions for Manlius by will or deed as he agreed to do. One of the witnesses went so far as to state that the house and lot contemplated by the parties was the one in which Manlius lived, near the residence of his employer, Staiar. However, this evidence is rather vague and uncertain. One of the witnesses, Mildred Taylor, testified in part as follows:

"Q. In the years before that, had you heard any talk between Manlius Netter and T. W. Staiar, and between Manlius and T. W. Staiar and his wife together, about any arrangement they had about his wages? Tell me yes or no. A. I have.

Q. Did you hear them more than once? A. Yes; I have.

Q. How often? A. Well, it would come up very often.

Q. * * * Tell the jury what you heard them say the first time, if you can distinguish the first time what they said, or the substance of all that was said. A. Uncle Manlius wanted to leave, and they didn't want him to. He didn't think he was getting wages enough. He talked to me about it, and I didn't think he was either.

Q. Tell what they said to him, and what they agreed upon, if they did agree on anything. A. He was talking to me before he talked to Manlius.

Q. Was Mr. Staiar talking to you before he talked to Manlius? A. Yes, sir; he told Manlius he wanted him to stay, didn't want him to leave; said he had things fixed for him and money to take care of him. Have heard him say that dozens of times.

Q. What did Manlius say? A. He said, 'That is all right, Boss,' if it is that way. I am expecting you to take care of me.

Q. How far back in your services was the first time you heard that? A. Soon after I went there.

Q. You mean by that, soon after you were 10 years old, when you went there? A. Well, all the time he would say that.

Q. And how late, down before he died, did you hear that discussed? A. * * * I was not there when he went away.

Q. In the conversation about the provision for Manlius, tell the jury if anything was said about what he was paying him. A. He paid him $15 per month at first, and paid him $20.

Q. Now, before that question, if you heard Mr. Staiar and Manlius together talk that matter over, or if Mr. Staiar talked to you, and told you anything about it, tell the jury. A. He said he knew $20 was not enough, but he had everything fixed for him, and he would never want for anything, if he stayed as long as they lived.

Q. Did he say now it was fixed? A. Said he would leave him a home and money to take care of him.

Q. Tell whether those old people, through you, made these facts known to the daughter. A. Yes, sir.

Q. Tell the court and jury how that came about, and how you know tell...