Trantham v. Gullic
| Decision Date | 10 April 1947 |
| Docket Number | 6635 |
| Citation | 201 S.W.2d 522 |
| Parties | TRANTHAM v. GULLIC |
| Court | Missouri Court of Appeals |
Paul Boone, of Gainesville, and Wm. D. Roberts, of West Plains for appellant.
G. W Rogers, of Gainesville, and Green & Green, of West Plains for respondent.
OPINIONVANDEVENTER
This is a claim against the estate of E. S. Trantham, who was a resident of Oregon County, Missouri, and who died the latter part of February, 1942. The plaintiff is Ollie Trantham, wife of Add Trantham, a son of the deceased. The controversy originated in the Probate Court of Oregon County upon the filing of a demand 'for services rendered the deceased during the latter days of his life -- $ 1580.00.' This demand was filed on the 27th day of January, 1943. Immediately upon the filing of the demand, citations were issued to Clyde Trantham, Add Trantham, Alta Huddleston and Hade Trantham commanding each of them to appear and qualify as administrator of the estate of E. S. Trantham, their father, within six days after service of such citation and upon failure to do so, letters of administration would be granted to such person as the court or clerk might deem most suitable. In response to such citation, Add Trantham appeared, filed a bond in the sum of $ 6,000 and letters of administration were issued to him. Later, because the demand against the estate was filed by his wife, Add Trantham filed a petition asking the appointment of an administrator ad litem, which the court sustained and thereupon appointed Percy W. Gullic.
The case was then tried in the probate court, both parties waiving a jury and the judge having heard the testimony, found for the defendant and adjudged that plaintiff pay the costs. An appeal was taken to the circuit court of Oregon County and later a change of venue to Ozark County where the cause was tried. In that forum, the plaintiff recovered a judgment for $ 1,000 and from this judgment, the administrator, ad litem, appealed. We will refer to the parties as plaintiff and defendant, the role they played in the trial court.
Plaintiff's evidence showed that the deceased at the time of his death was about 78 years of age. His wife had died in 1939 and he was living alone in the village of Rover in his own four-room home, which was located on a 3-acre tract of land. Add Trantham, his son and Ollie (Add's wife) lived on a farm in the vicinity. On the 25th of December, 1939, they moved into the home of the deceased and lived there until his death. The plaintiff's testimony shows that in September, 1941, the deceased became ill, was confined to his bed practically all of the time until about the 12th of December when he was taken to the hospital at West Plains for about a week and later to the Maples Apartment in West Plains, but that he was returned to his home about the first of January, where he stayed until his death. This evidence further showed that Ollie Trantham, the plaintiff, nursed the deceased, administered medicine, cooked his meals, washed his clothing and bed clothing, helped him use the bed pan, provided 'spit-cups' and attended him generally in his illness. He was practically helpless until the date of his death, had no control over his bowels or kidneys, which necessitated a great deal of washing of bed clothes, use of the bed pan and similar duties on the part of Ollie Trantham. An offensive odor permeated the house and Lysol was used as a deodorant. Plaintiff's evidence showed that she would, with the assistance of her husband, Add Trantham, lift him up in the bed, change his clothing and generally nurse him in his helpless condition. That these services were rendered in both night and day time when necessary. At one time for several days, a nurse was hired to attend him. Belle Batey, a witness for plaintiff, testified on cross-examination:
There was no evidence of an express contract to compensate Ollie Trantham for her services. The only evidence offered by plaintiff relative to compensation is as follows:
Alva Judd, a nephew of plaintiff by marriage and who was a farmer living in the community, testified that the deceased had sent by him for groceries and that he had heard him say several times that he was furnishing groceries for the family. He also testified that in September, 1941, they had a nurse with the deceased, and that he was present when deceased was dispensing with her services. Judd was asked if he heard a statement by E. S. Trantham, the deceased, at that time. His answer was: 'Yes, the nurse was getting ready to go and I went up to his bed and said, your nurse is leaving, and he said, yes, I just as well pay Ollie as she would do better than her.' During this conversation plaintiff was not present.
Alberta Hablutzel, referring to the same conversation testified: 'Yes, I was there the morning she (the nurse) was leaving and Mr. Trantham said, he didn't think there was any use of keeping the nurse as Ollie was taking as good care of him and she ought to have the pay.'
Alice Judd, a niece of plaintiff, testified to the same conversation as follows: 'Yes, Mr. Trantham said, you had just as well send her home as Ollie was taking as good care of him as the nurse and I just as well pay her as the nurse.'
Belle Batey's testimony was:
The evidence does not show that plaintiff was present or ever knew of these conversations.
This witness further testified that she was acquainted with charges usually paid in that community for nurses and that the reasonable charge for a practical nurse in that community was about $ 7 a day, which included both day and night services.
The defendant offered testimony to the effect that while the deceased became ill in September, that he was not confined to his bed but that he did chores around the house, carried in wood, milked the cows, fed chickens, etc. That, in addition to furnishing the home for Add and Ollie, he also supplied the groceries for the family and either purchased them personally or sent the money for them by other parties. That he would buy stands of lard, big sacks of flour, five or six pounds of coffee at a time. That about the 12th of December, 1941, he became ill, was taken to a doctor at Thayer and then to the West Plains hospital where he stayed a week, was taken home for a day or two and then back to the Maples Apartment at West Plains where he stayed about two weeks and was brought home again about the 1st of January. The evidence does not show that plaintiff went with him to West Plains. He died the latter part of February, 1942, and from the time of his return from West Plains until his death, he was confined to his bed most of the time and was practically helpless. That Ollie Trantham, the plaintiff, did not perform any services in nursing the deceased but that she did cook for him and kept house but that his sons and daughters nursed him as was necessary in the later weeks of his life. That his daughter, Alta Huddleston, came and got his clothing and bed clothing, took it away, washed it and brought it back. There was testimony that plaintiff said she was unable to lift the deceased or take care of him by reason of an operation, that she had undergone some time before. For several days in September they had a nurse to wait on deceased.
Some time in September, 1941, Nora Witt, a daughter of the deceased, came to visit her father at which time the father had her collect a $ 5,000 note due him from the Reed Harlan Grocery Company and from the proceeds to distribute $ 500 to each of the children. Add Trantham, the husband of the plaintiff, owed the deceased a note for $ 300 and was surety on another note to the deceased made by Melvin Trantham, Add's son, in the sum of $ 200. On these notes there was considerable unpaid interest. The deceased instructed Nora Witt to give these two notes to Add Trantham as his part of the distribution and further instructed that the interest be waived. After the deceased had returned to his home from West Plains, January, 1942, he deeded his farm to his daughter, Nora Witt, with instructions that after his death, she was to sell it and the proceeds be divided equally among the children as was also the remainder of the other money on hand after payment of funeral expenses. That these payments and divisions were all made in the presence of Add and Ollie Trantham and that Ollie, the plaintiff, made no claim at any time that the deceased was indebted to her. Defendant's testimony further showed that after his father's death, Add Trantham said that he and his wife, Ollie, should be paid $ 100 each for services but that the plaintiff, Ollie, said, 'I am having nothing to do with it.' After the funeral expenses were paid, the money derived from the sale of the land, and the other money on hand was divided equally among the children as had been directed by the deceased.
Marie Trantham, wife of Melvin and daughter-in-law of plaintiff testified plaintiff told...
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