Taylor v. George

• Decision Date: 11 December 1913
• Citation: 176 Mo. App. 215,161 S.W. 1187
• Parties: TAYLOR v. GEORGE.
• Court: Missouri Court of Appeals

161 S.W. 1187

176 Mo. App. 215

TAYLOR v. GEORGE.

Springfield Court of Appeals. Missouri.

December 11, 1913.

Rehearing Denied January 6, 1914.

1. WORK AND LABOR (§ 7)—IMPLIED CONTRACT —CONTRACT BETWEEN RELATIVES.

There is no presumption that services rendered by a daughter to her aged mother are to be paid for, and, to recover therefor, the daughter must show a contractual relation by proving an intention and obligation on one side to pay, and intention and right on the other to receive pay, for such services.

2. WITNESSES (§ 144)—COMPETENCY—TESTIMONY OF AGENT — CONTRACT WITH DECEDENT.

Under Rev. St. 1909, § 6354, providing that, in actions where one of the original parties to the contract in issue is dead, the other party shall not testify for himself, where the other party to the contract sued on is dead, the agent of the living party, who made the contract for such party, is disqualified from testifying in an action to enforce the contract.

3. WITNESSES (§ 144) — COMPETENCY — CONTRACT WITH DECEDENT.

Rev. St. 1909, § 6354, providing that no person shall be disqualified as a witness by reason of interest in the event, provided that, in actions where one of the original parties to the contract in issue is dead, the other party shall not testify for himself, is both an enabling and a disabling statute; the proviso disabling one from testifying on account of the other's death.

4. WITNESSES (§ 144) — COMPETENCY — CONTRACT WITH DECEDENT—CONSTRUCTION OF STATUTE.

Rev. St. 1909, § 6354, providing that, in actions where one of the original parties to a contract in issue is dead, the other party to the contract or cause of action shall not testify for himself, should be construed to accomplish its evident purpose of preventing by law one party to a contract from testifying, where death has prevented the other from testifying.

5. HUSBAND AND WIFE (§ 25)—AGENCY FOR WIFE—SUFFICIENCY OF EVIDENCE.

Evidence, in an action by a daughter against her mother's estate to recover for personal services in caring for her mother, held not to show that plaintiff's husband was her agent for making a contract with her mother to pay for the latter's care.

Appeal from Circuit Court, Dallas County; C. H. Skinker, Judge.

Action by S. E. Taylor against John George, executor of Mrs. E. G. Munhollon, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

J. W. Miller and Levi Engle, both of Buffalo, and L. C. Mayfield, of Lebanon, for appellant. John S. Haymes and O. H. Scott, both of Buffalo, for respondent.

STURGIS, J.

This suit has for its basis the same claim against the estate of Mrs. E. G. Munhollon as was the subject of the appeal in Taylor v. George, 159 Mo. App. 160, 140 S. W. 611. After the decision in that case, plaintiff brought suit in the circuit court to establish her claim as a judgment for allowance against that estate. The plaintiff is the daughter of the deceased. Her claim is made up of several items, by far the largest of which is for boarding, supporting, and taking care of her mother during the last 10 or 12 years of her life and during the last two of which it is alleged her mother was almost entirely helpless, requiring almost constant care. After hearing the evidence, the court excluded this item and two others of minor importance from the consideration of the jury and permitted plaintiff to recover for two other items for taxes paid and purchase of a coffin for deceased. The plaintiff has appealed.

There is no formal assignment of error in this court, but the "points" made in appellant's brief relate to the action of the court with reference to this item for care and support of plaintiff's mother. The evidence abundantly shows, and it will be conceded, that the deceased mother, an aged widow lady, lived with her daughter during the last several years of her life, and that during the last year or more she was in a rather helpless condition both mentally and physically and required much care and attention. That the daughter, plaintiff here, gave her mother a home and bestowed on her kind and patient care and attention, administering to her every want as best she could from her limited means and humble home, goes without question.

It must be conceded, however, that, on account of the relationship of these parties and the circumstances under which the mother went to live with the daughter in her old age, however meritorious and valuable were the services, care, and attention rendered by the daughter to the mother, this case falls within that class of cases where no presumption arises that such services are to be paid for. Unlike it would be between strangers, no implied contract to pay for same arises from the performance by one of a family of valuable services for another. Such services are in such cases presumed to be rendered on account of the moral obligations arising from the family relation and to be gratuitous. Before one party can recover from another a money consideration under such circumstances, there must be proof of a contractual relation, showing both an intention and obligation on the one party to pay and an intention and right on the other party to demand and receive pay for such services. The law applicable to this and like cases is well expressed and the authorities collated by the Kansas City Court of Appeals in Brand v. Ray, 156 Mo. App. 622, 630, 137 S. W. 623, 624, as follows: "That the family relation existed is not a matter of doubt or dispute. In such instances there is no presumption, as in cases between strangers, that services rendered by one member to the other are to be paid for. Such services are, however, the subject of contract, and they can only be made the ground of an action when they are rendered under a contract between the parties. The contract need not necessarily be in the form of express terms. It may be implied; but, before an implication will arise, it must be shown that there was a contractual intention and understanding and an expectation to pay wages by one party and an expectation to receive wages by the other. Bircher v. Boemler, 204 Mo. 554, 562, 563 ; Kostuba v. Miller, 137 Mo. 161, 175, 38 S. W. 946; Erhart v. Deitrich, 118 Mo. 418 ; Morris v. Barnes, 35 Mo. 412; Guenther v. Birkicht, 22 Mo. 439. And so the Courts of Appeals have time and again followed these decisions. Woods v. Land, 30 Mo. App. 176; Brock v. Cox, 38 Mo. App. 40; Lawrence v. Bailey, 84 Mo. App. 107; Sloan v. Dale, 90 Mo. App. 87; Fitzpatrick v. Dooley, 112 Mo. App. 165 ; Birch v. Birch, 112 Mo. App. 157 . The expression of an intention to bestow a bounty and an expectation to receive a bounty will not suffice; an expectation to be made the beneficiary in a will is not sufficient There must be an understanding of a debtor and creditor relation, capable of enforcement in law. There must be brought into existence a legal obligation."

The cases of Bircher v. Boemler, 204 Mo. 554, 103 S. W. 40, and Woods v. Land, 30 Mo. App. 176, show that there must be something more than a mere intention to make, or expectation to receive, compensation at some time and in some way for such services in order to constitute the same an enforceable claim against an estate. The claimant must show such an agreement between the parties as will compel the beneficiary to make payment, whether he so desires or not.

The claimant in this case, in recognition of this requirement of the law, attempted to show a promise and agreement by the deceased with her daughter binding the deceased to pay her daughter for boarding and taking care of her. It is conceded that such agreement was shown, if at all, only by the evidence of the plaintiff's husband. The trial court excluded his evidence as being incompetent, and this is the principal question in the case.

The husband would be a competent witness for his wife only by reason of his being her agent and then only as to some matter of business or business transaction had with or conducted by him as her agent. Section 6359, R. S. 1909. Granting that he was, and acted in this matter as, his wife's agent and as such made a contract for her binding his mother-in-law to pay her daughter for boarding and caring for her, we are then confronted with the proposition that, the other party to this contract being dead, he is an incompetent witness under the proviso contained in section 6354, R. S. 1909. The insistence is that the statute disqualifying one party to a contract when the other is shown to be dead includes the agent of such living party where the contract was made by and through such agent. This has been a much mooted question in this state. The decisions are conflicting. It was at one time held that the statute did not disqualify a party to a contract or cause of action in issue unless such party was also a party to the suit. Looker v. Davis, 47 Mo. 140; Jackson v. Smith, 139 Mo. App. 691, 123 S. W. 1026, and cases cited. Such, however, is not now the law. McClure v. Clement, 161 Mo. App. 23, 25-28, 143 S. W. 82, and cases cited; Meier v. Thieman, 90 Mo. 433, 2 S. W. 435; Cleveland v. Coulson, 99 Mo. App. 468, 73 S. W. 1105: Griffin v. Nicholas, 224 Mo. 275, 328, 123 S. W. 1063. There is also a line of decisions based on the theory that the statute is an enabling one only and not a disabling one, and that whether the witness has or has not an interest in the controversy is a fact to be considered in determining his competency. This doctrine is to the effect that, where a witness is not a party to a suit or interested therein, he is not disqualified at common law, even though the other party to the contract in issue is dead, and the statute, being an enabling one only, does not disqualify one who is not disqualified by the common law. Baer v. Pfaff, 44 Mo. App. 35, 40; Ring v. Jamison, 66 Mo. 424; Curd v. Brown, 148 Mo. 82, 49 S. W. 990; Clark v. Thias, 173 Mo. 628, 73 S. W. 616. Some of these cases have been expressly overruled, and...