Appeal
from the Circuit Court of Carroll County.--Hon. Ralph Hughes
Judge.
OPINION
FRANK,
C.
This case arose in the probate court of Ray
county, where respondent filed a claim against the estate of
Minerva Belle Wharton, deceased for services rendered said
deceased during her lifetime. The claim filed by respondent,
omitting caption and verification is as follows:
"To services rendered Minerva Belle Wharton, at
the
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special instance and request of said Minerva Wharton,
in
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cooking her meals and carrying them to her, sweeping
her
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house, milking her cow and doing her housework, for a
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period of twenty years, commencing October 17, 1924,
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at $ 5 per month
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$ 1200.00
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"To nursing, waiting on, sitting up at nights with
and
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attending said Minerva Belle Wharton, and giving her
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medicine, for the same period above stated, during
which
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time said Minerva Belle Wharton was constantly in ill
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health, and required attention and care, at $ 12.50 per
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month
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$ 3000.00
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"Total
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$ 4200.00"
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Respondent's claim is for services rendered to deceased
during her lifetime from October 1, 1904, until October 17,
1924.
Decedent
lived with her mother in the town of Lawson, Missouri, until
the date of her mother's death in 1913. Thereafter she
continued to live in the same house until her death in 1924.
Respondent's husband, who died in 1904, was
a brother of decedent. Respondent and decedent were not
otherwise related. No family relation existed between them.
They lived in separate households. During the entire time in
question respondent with her two children lived across the
street and two doors east of decedent's home.
The
decedent was sick a great portion of the time during the
twenty years preceding her death. She sent for respondent on
an average of three or four times a week during a period of
twenty years. These calls usually came after midnight.
Respondent always responded to these calls and many times
stayed all night with her.
Mrs.
Joe Titus a sister of respondent testified as follows:
"I
don't know how often she had to stay all night over
there, because I never kept count. I know of my own knowledge
that she did stay all night over there because she would
bring her daughter Katie to my house and leave her while she
had to go. I have gone with her and have stayed all night
over there myself.
"During
that time I visited deceased once in a while. She was sick
most of the time, or said she was at least.
"I
have seen plaintiff give deceased medicine and sit up all
night with her. She did that so often that I never kept
count. I have seen her cooking and carrying meals over to
deceased three times a day. She lived two doors east and
across the street from deceased. I have known her to do that
a week at a time, but it wasn't so often that she would
cook and carry her meals to her that way. Plaintiff would fix
deceased's bed for her and sweep the house and straighten
up everything. I couldn't tell how often I have seen that
done during the years since 1904.
"I
moved there in 1904.
Those services were rendered so often that I never kept
count.
"Q.
And how much of the time did they continue during that twenty
years? A. Well, she just called on her all the time."
Mrs.
George Madden lived across the street from decedent's
home from 1903 until 1911. She testified that during the time
she lived there she saw respondent at decedent's home
drawing water, carrying in coal and sweeping out the house as
often as three times a week; that she had seen respondent
leaving decedent's home in the morning before eight
o'clock; that this occurred about three times each week.
Dr.
John H. Romey a practicing physician testified in substance
as follows:
"During
the time that she lived in town from 1903 to her death, I
attended her professionally. Some years I was called more
frequently than others. I looked up ten months of 1924 prior
to her death, and I think I was there seven or eight times in
that year; in that ten months. That was the last months
before her death. I haven't been there so many times in
the last six or seven years as I was there before that time.
"From 1913 to 1916, inclusive, was one of
the times that I was there oftener, as I remember it, than
any other time. I treated her before they moved into town,
and treated her more or less from the time she moved into
town until her death. I don't suppose I treated her all
of the time, and might have been some other physicians. I was
called every year from the time she moved into town until the
time she died. When I went to see her when she was seriously
sick Mrs. Wharton, the plaintiff, was always there. When I
visited her she had pain. She had different troubles, stomach
trouble, and kidney trouble.
"Q.
Was her condition at any time serious or not? A. Yes. I saw
Mrs. Wharton, the plaintiff, take care of Minerva Belle
Wharton when I was there. When Minerva Belle Wharton was
seriously sick she wanted company, and she was usually easier
when Mrs. Wharton came."
Dr.
Edwin Shouse another physician testified that he attended
decedent from 1909 until 1912 and again from 1918 up to and
including 1920; that seventy-five per cent of the times he
called to see decedent he saw respondent there administering
to her needs; that he was not decedent's attending
physician and did not attend her after 1920.
Mrs.
Roy Morrow a daughter of respondent testified as follows:
"I
am a daughter of plaintiff and the wife of witness Roy
Morrow. Until I was married seven years ago I lived with my
mother in Lawson, and since that time I have continued to
live at Lawson, Missouri, which is a small town of seven
hundred or eight hundred or nine hundred people.
"When
I lived with my mother I lived across the street and two or
three doors away from Miss Belle Wharton, whom I knew all of
my life. I remember as far back as 1904. From that time on up
to her death in 1924, Miss Belle Wharton was very nervous,
sick all of the time. I have seen my mother, the plaintiff,
cook Miss Belle Wharton's meals and carry them to her for
a week at a time, besides cooking the meals at Miss
Belle's own house. I know of my own knowledge that those
services began ever since she came to town in 1903. Unless
Miss Belle was sick in bed my mother would not carry her
meals to her. I think she cooked and carried her meals to her
about three times for a week or ten days. That was just
before she went to the hospital in 1921. At other times my
mother cooked Miss Belle's meals in her own home. I could
not say how often she would do that during the twenty years.
My mother did all kinds of housework at Miss Belle's
home, such as carrying in coal, ironing, sweeping and
dusting, and everything. She did that about three or four
times a week, all the time for the whole twenty years. I have
seen my mother sit by the bed and hold Miss Belle's
pulse, and she was to wake her every fifteen minutes, either
to take her medicine or for fear her pulse
would go down. Sometimes she would do that every night for a
week or so, and then sometimes it was just two or three times
a week. Those services continued every night, off and on for
twenty years. They were rendered both day and night, most
frequently at night. Miss Belle did not rest well at night.
She did not rest at all unless medicine . . . ."
Other
witnesses testified that respondent gave decedent medicine,
milked her cow, carried coal and swept her house three or
four times a week during a period of twenty years.
Respondent
introduced evidence to the effect that the reasonable value
of the nursing and care of decedent by respondent was $ 25 or
$ 30 per month and the reasonable value of the other services
rendered by respondent was from $ 9 to $ 12 per month.
Appellant
in his statement calls attention to the fact that certain
evidence was admitted over the objection and exception of
appellant but no error is assigned thereon in this court. The
point is not here for review. [Sinclair v. Telephone
Co., 195 S.W. 558.]
The
first contention presented here is that the court erred in
giving instruction No. 1 which reads as follows:
"If
you find and believe from the evidence that the plaintiff
between October 1, 1904, and October 17, 1924, at the request
of Minerva Belle Wharton and carried them to her, swept her
house, milked her cow and did her housework, and nursed the
said Minerva Belle Wharton, sat up nights with and attended
her, and gave her medicine; and that it was the intention of
plaintiff to charge for such services and of said Minerva
Wharton to pay therefor, then you will find for plaintiff for
such sum as you may find such services, if you find such
services were performed, to have been reasonably worth.
"If
you find for plaintiff you cannot find to exceed the sum of $
5 per month for cooking meals and carrying them to said
Minerva Belle Wharton, sweeping her house, milking her cow
in doing her housework, nor can you find for plaintiff to
exceed the sum of $ 12.50 per month
for nursing the said Minerva Belle Wharton, sitting up nights
with and attending her and giving her medicine. These amounts
are not to be considered by you as an indication of the
amount you should find such services to be worth, if you find
such services were performed, but if you find for plaintiff
it should be for such sum as you find such services...
