Vosburg v. Smith, 7253

• Court: Missouri Court of Appeals
• Writing for the Court: STONE
• Citation: Vosburg v. Smith, 272 S.W.2d 297 (Mo. App. 1954)
• Decision Date: 26 October 1954
• Docket Number: No. 7253,7253
• Parties: Lota VOSBURG, Plaintiff-Respondent. v. Archie SMITH, Executor of Estate of Sarah Ann Smith, Deceased, Defendant-Appellant.

Page 297

272 S.W.2d 297

Lota VOSBURG, Plaintiff-Respondent. v. Archie SMITH, Executor of Estate of Sarah Ann Smith Deceased, Defendant-Appellant.

No. 7253.

Springfield Court of Appeals, Missouri.

Oct. 26, 1954.

Esco V. Kell, West Plains, for defendant-appellant.

Green & Green, West Plains, for plaintiff-respondent.

STONE, Judge.

Defendant, as executor of the estate of Sarah Ann. Smith, deceased, appeals from an adverse judgment of $2,500 entered, following trial by jury in the Circuit Court, upon a demand originally filed in the probate court by plaintiff, decedent's daughter, 'for services rendered Sarah Ann Smith in nursing, medicine, washing, ironing, furnishing food, clothing, board and lodging from April 29, 1948, to December 20, 1951, all at special instance and request of Sarah Ann Smith--1335 days @ $5.00 per day, $6,675.00.' Valentine Smith and Sarah Ann Smith, his wife, were living in Willow Springs, Missouri, when Valentine died in 1947 at the age of 92, leaving his widow, Sarah, then 88 years of age, and five children, Archie of Willow Springs, Hillard M. of Springfield, Missouri, Elmer of Oklahoma, W. R. of Virginia, and Mrs. Cecil V. (Lota) Vosburg of Delco, Idaho, plaintiff herein. Hillard, a witness for defendant and the only son who testified, said that his mother then 'could be up and around.' Sarah continued to live at Willow Springs until April, 1948, when plaintiff 'came for the purpose of getting mother and taking her back' to Idaho. The record does not show plainly why plaintiff came for her mother; but, although Hillard testified that, while plaintiff was in Willow Springs, 'mother would decide at times she didn't want to go and sister (plaintiff) would encourage her to go ahead and persuaded her to go,' he (Hillard) frankly conceded that he also had 'urged' his mother to accompany plaintiff to Idaho and that he had thought that 'it is her (plaintiff's) place to take care of her (Sarah)'--'we all thought so.' In any event, Sarah went to Idaho with plaintiff, arriving there on April 28, 1948, and thereafter lived in plaintiff's home until her (Sarah's) death on December 20, 1951.

Although, when taken to Idaho, Sarah was mentally alert and in good health for a person of her age, 'she was very feeble and couldn't see well--she had to be led to the bathroom and to her meals.' 'Occasionally she would wet the bed, perhaps once in the night and once a day, and she frequented the bathroom very often and she couldn't see well, so the bathroom had to be cleaned.' Plaintiff's husband said that 'I have seen my wife clean an entire bathroom as many as five times a day.' Sarah was never left alone in the house 'because they were afraid she would fall down the basement steps or wander away.' The evidence shows that her physical and mental condition deteriorated gradually. During the last year of her life, she was in bed most of the time; and, when attended by a physician on June 2, 1951, about 6 1/2 months prior to her death, she was very senile, 'suffering from arteriosclerosis with marked mental changes,' and in such condition that it was necessary for plaintiff 'to lift her in and out of bed, lift her on a commode, take her meals to her, read to her, and treat her generally as a child.' During the last 2 months of her life, plaintiff was bedfast, lost control of her kidneys and bowels, and had to be 'diapered just like a child.' Sarah 'still would eat and drink, but she couldn't feed herself or hold her cup.' The bed had to be changed frequently, and Sarah had to be watched to prevent her from turning over and falling out of bed. 'It was endless to take care of her and watch her all of the time'--'she was more care than a sick baby.' In short, plaintiff's uncontradicted evidence adequately demonstrated that the services rendered to her aged and infirm mother were burdensome, onerous and frequently disagreeable, but that they were discharged with filial fidelity and devotion.

Seven witnesses, namely, plaintiff's husband, two daughters, a son-in-law, two neighbors and a physician, testified that they had heard Sarah, after she came to her daughter's home in Idaho, make such statements as 'you (plaintiff) will be well paid for taking such good care of me,' 'she (plaintiff) will get good pay when it is all said and done,' and 'she will be paid for my care--I'm not a pauper--I have means to pay my way.' One of plaintiff's daughters said that, while at breakfast two or three days after her arrival in Idaho, Sarah had commented about 'what a wonderful breakfast it was,' had told plaintiff 'you will be well paid for taking such good care of me,' and had added that Valentine Smith (her deceased husband) had stated 'that was what the estate was for, was to take care of me as long as I lived.' Plaintiff's husband said that he had heard Sarah tell plaintiff 'you will be paid well for this' not less than fifty times. And, Dr. Hugh E. Dean testified that, when he first attended Sarah at plaintiff's home on June 2, 1951, she told him 'my daughter will pay for my care--I am paying her to take care of me.' Defendant introduced in evidence 28 checks drawn on the State Bank of Willow Springs in the aggregate sum of $1,019.78, dated at irregular intervals during the period from December 6, 1948, to December 14, 1951, issued in varying amounts (1 check was for $75, 10 were for $50 each, and the remainder were for lesser amounts from $40 to $19), all payable to plaintiff, and all bearing notations such as 'for care of mother,' 'for expenses,' or 'for expense for sis.' Of these 28 checks, 17 were signed 'Mr. Valentine Smith--by Archie Smith' (with minor variations as to initials) and 11 were signed 'Archie H. Smith.' Hillard said that these checks were drawn on Sarah's bank account in Willow Springs.

Relying upon the long-recognized principle that services rendered by a child to the parent are presumed to be gratuitous ¹, defendant insists that his motion for a directed verdict should have been sustained. But, the presumption of gratuitous service affects only the burden of proof, casting upon the child the burden of overcoming such presumption and of proving an agreement to pay ²; and, although mere expressions of gratitude or intended generosity are not alone sufficient ³ and claimant's evidence must be clear and convincing ⁴, it is well-settled that proof of an agreement or mutual understanding for payment ⁵, upon which recovery may be had, need not be by direct testimony but may be by facts and circumstances from which such agreement or mutual understanding properly may be inferred ⁶. 'It is enough for the claimant to adduce evidence from which the jury might find that he and the deceased understood that the services rendered were not voluntary, but were to be remunerated.' Brown v. Holman, 292 Mo. 641, 238 S.W. 1065, 1067(2); Chandler v. Hulen, 335 Mo. 167, 71 S.W.2d 752, 755(2); Liebaart v. Hoehle's Estate, Mo.App., 111 S.W.2d 925, 929(7).

Considered in the light of the foregoing principles, we have no doubt but that the evidence in the instant case was sufficient to permit a finding by the jury that there was an agreement or mutual understanding between plaintiff and her mother, Sarah, that plaintiff should be compensated for services rendered. It is true that, as defendant earnestly argues, there was evidence from which the jury could have reached a contrary conclusion and a different result. Certain statements in plaintiff's letters to Archie while Sarah was in Idaho lend strong support to defendant's contention that plaintiff then did not expect to receive any compensation other than that represented by the checks drawn on Sarah's bank account. However, when the statements in plaintiff's letters are read in context, as they should be [see and contrast Wooldridge v. Bryan, 307 Mo. 234, 270 S.W. 658, 661-662(6, 7)], we think it clear that such statements constituted 'extrajudicial admissions' or 'quasi-admissions,' as distinguished from 'judicial admissions' or 'true admissions' ⁷; that, there being no elements of estoppel in the instant case, such extrajudicial admissions as plaintiff made in her letters to Archie were 'nothing but * * * item(s) of evidence, and * * * not in any sense final or conclusive' [Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 917(20)]; and that, there having been substantial evidence from which an agreement or mutual understanding for payment could have been inferred, the weight and value of plaintiff's admissions were for the jury ⁸.

In cases of this character where plaintiff are precluded from testifying (Section 491.010, RSMo 1949, V.A.M.S.), their intention to charge for services is frequently 'not so clear' [Chandler v. Hulen, supra, 71 S.W.2d loc. cit. 755(5)]; but, although the record in the instant case leaves ample room for argument as to how much she intended to charge and from whom she might have intended to collect, plaintiff undoubtedly sought payment for her services from the outset. For, her letters to Archie were replete with pointed and sometimes pungent references to the hardships, difficulties and expenses incident to caring for her mother, what it 'ought to be worth' to care for Sarah, what it would cost to keep her in a rest home, and other financial aspects of the situation. Upon trial, in response to the question 'to your knowledge did your mother (plaintiff) expect to be paid?', plaintiff's daughter answered, without objection, 'Yes.' The probative worth and effect of this answer, although it might have been excluded on proper objection, was for the jury ⁹. Furthermore, it might be said plausibly that plaintiff's intention to charge was recognized by the making of 28 payments from Sarah's bank account to plaintiff, although whether, under the circumstances of this case, those checks constituted payment in full for plaintiff's services likewise was for the jury. Fry v. Fry, 119 Mo.App. 476, 94 S.W. 990, 991(3); Aldridge v....