Winschel's Estate, In re, 8399

• Citation: 393 S.W.2d 71
• Decision Date: 22 July 1965
• Docket Number: No. 8399,8399
• Parties: In the Matter of the ESTATE of Andrew WINSCHEL, Deceased. Leo WINSCHEL and Clemens H. Winschel, Administrators, Defendants-Appellants, v. Hilda GLASTETTER, Plaintiff-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 71

393 S.W.2d 71

In the Matter of the ESTATE of Andrew WINSCHEL, Deceased.

Leo WINSCHEL and Clemens H. Winschel, Administrators, Defendants-Appellants, v. Hilda GLASTETTER, Plaintiff-Respondent.

No. 8399.

Springfield Court of Appeals, Missouri.

July 22, 1965.

Leo J. Rozier, Roscoe D. Moore, Perryville, for defendants-appellants.

Bill D. Burlison, Cape Girardeau, for plaintiff-respondent.

HOGAN, Judge.

This is an action brought by the plaintiff, Hilda Glastetter, against the defendants, as administrators of her father's estate, to recover the reasonable value of services rendered to Mr. Andrew Winschel over a period of about sixteen years. The claim was first tried in the probate court, and, on appeal by the plaintiff, was tried to a jury in circuit court. The jury has returned a verdict for $4,000.00 in favor of the plaintiff, and the defendants have appealed.

In 1946, the decedent, Andrew Winschel, lived with his wife on a farm near Perryville, Missouri. The plaintiff, one of the decedent's nine children, was employed in St. Louis. In September 1946, Mrs. Winschel suffered a 'stroke' and became bedridden. At Mr. Winschel's request, the plaintiff 'moved back' to the farm near Perryville and attended Mrs. Winschel until she died in April 1947. The plaintiff received the sum of $100.00 per month for her services in caring for her mother.

Very shortly after his wife died, Mr. Winschel, then 73 years of age, executed a will in which he declared, among other things, that '* * * I also want the child or children who shall care for me in my old age paid generously, for such attention * * *.'

In June 1947, Mr. Winschel left his farm and moved to Perryville, and the plaintiff accompanied him. In September 1947, the plaintiff was married, and she and her husband continued to live with Mr. Winschel under an arrangement whereby the plaintiff and her husband paid the utilities and the grocery bill, Mr. Winschel the taxes on the house, and the plaintiff and her husband were allowed to use 'one room free rent.' Two rooms upstairs 'was rented out and Mr. Winschel collected rent on.' As the plaintiff's family increased (she became the mother of three children), the tenants were moved out; plaintiff, her husband and children were allowed the use of two bedrooms and shared the use of the kitchen. This arrangement lasted from June 1947 to November 1957, during which time the plaintiff washed and ironed for Mr. Winschel, 'kept his [decedent's] room clean, and saw that he was clean,' and did the cooking, sewing and mending. In 1953, the Glastetter family bought a house of their own in Perryville but disposed of it when Mr. Winschel refused to move. The evidence indicates that during the period from 1947 to 1957 the decedent was deaf and his vision was somewhat limited, but otherwise he was in good health and required 'no special attention.' Mrs. Glastetter received no payment for her services rendered during this period, though the decedent 'mentioned' several times '* * * that Hilda * * * should get paid for her services that she had to render for him * * *.'

In November 1957, plaintiff and her family moved to Cape Girardeau and Mr. Winschel moved with them. Decedent was then 83 years old and the erosion of age set in. In 1958, Mr. Winschel became ill, 'developed a heart condition, high blood pressure, his nose was bleeding,' and began to require careful attention. In January 1962, the decedent had a prostate operation and 'lost control of his urine.' As the plaintiff's sister described the situation, the plaintiff '* * * took care of him like a baby, she took him to the bathroom and because he had no control of his urine she had several urinals for him, she had a clamp for his privates, and she had to take him to the bathroom, unclamp him, clamp him back up again when he was finished. If he had an elimination, she wiped him. That was a horrible chore, believe me.' In addition to this attention, the plaintiff 'led him [Mr. Winschel] around because he was weak * * * she had to dress him [and] undress him,' and the plaintiff continued to do the cooking, washing and ironing. Mr. Winschel died January 23, 1963, at the age of 89. Further details of the evidence will be referred to in the course of the opinion.

Errors assigned are: a) that the evidence is insufficient to overcome the presumption that the services were rendered gratuitously; b) that the court erred in permitting Mr. Winschel's will to be introduced in evidence; c) that Cyril Glastetter, the plaintiff's husband, should not have been permitted to testify, because he was in fact a real party in interest and should have been joined as a party; d) that the trial court erroneously received the evidence of a registered nurse concerning the value of the services rendered; e) that the evidence established that the plaintiff had actually been paid for her services; and f) that the verdict is excessive. We agree with the respondent, incidentally, that these points are somewhat indifferently briefed. The appellants' 'argument' does not follow the 'points relied on' as required by Rule 83.05(a)(4), ¹ and they argue the evidence, for the most part, without page references as required by Rule 83.05(d). However, a reading of the appellants' brief discloses fairly clearly what they claim as error, and why, and therefore we decline to treat their brief as being wholly insufficient or their points as being abandoned.

So much has been written concerning recovery for services rendered to another standing in a family relationship that it would serve no useful purpose to reiterate the general rules in this opinion. ² The presumption is that such services were gratuitously rendered, and the party claiming compensation therefor has the burden of rebutting that presumption, McDaniel v. McDaniel, supra, 305 S.W.2d at 464, but proof of a special or express contract for remuneration has never been required in this jurisdiction. ³ In a case of this kind, it is enough for the plaintiff to introduce evidence from which a jury may reasonably find that the plaintiff and the deceased mutually understood that the services rendered and received were not voluntary but were for remuneration. ⁴ In ruling on the appellants' earnest contention that there is no evidentiary basis for the verdict, it must also be borne in mind that the respondent is entitled to the most favorable construction of the evidence, and to the benefit of all reasonable inferences to be drawn from it. ⁵

Both the defendants and the plaintiff have argued the force of the evidence from a number of aspects, but in our view it is unnecessary to consider all the inferences possible upon the proof adduced. For example, the defendants argue that there can be no question but that a family relationship existed between the plaintiff, her family and the deceased during the entire period in question, and we think the jury might so have concluded. However, they appear to have lived for many years under a contractual agreement whereby Mr. Winschel paid taxes on the house and plaintiff and her husband paid for all the groceries and utilities, and this is a circumstance which could be interpreted as negativing the existence of an ordinary family relationship, Lillard v. Wilson, supra, 178 Mo. at 157-158, 77 S.W. at 76-77; Anno., supra, 7 A.L.R.2d at 41-44, Section 16, and as tending to rebut the idea that plaintiff's services were gratuitous. The defendants also vigorously argue the idea of payment, pointing to the fact that after the plaintiff moved to Cape Girardeau Mr. Winschel paid the sum of $35.00 per month for board and room, and calling our attention to the evidence that from September 1962 to the date of decedent's death the plaintiff received the sum of $125.00 per month in payment for her services, apparently by family agreement. The fact that the decedent paid board and room, however, would give rise to no presumption that such payment was intended as full satisfaction for all services rendered to him, Fry v. Fry, 119 Mo.App. 476, 479, 94 S.W. 990, 991, and it was for a jury to decide whether the partial payments made constituted full payment of all that the decedent owed. Vosburg v. Smith, supra, 272 S.W.2d at 302; Aldridge v. Shelton's Estate, Mo.App., 86 S.W.2d 395, 400. The appellants also argue that there is no evidence that Mr. Winschel needed any services before he became ill in 1958, but this argument is very unconvincing in view of the uncontradicted evidence that in June 1947 he was already 72 or 73 years old, and both his hearing and sight were impaired. Also the fact that during the entire time involved the services in question were rendered by only one of the decedent's nine children, without participation by the other children, is a factor rebutting the presumption that the services were gratuitously rendered. Allmon v. Allmon, supra, 314 S.W.2d at 462; Liebaart v. Hoehle's Estate, supra, 111 S.W.2d at 930.

The defendants also vigorously argue that there is no evidence of any understanding on the plaintiff's part that she would be compensated, and they call attention to our ruling in Trantham v. Gullic, Mo.App., 201 S.W.2d 522, 527, that the plaintiff must show '* * * an intention and willingness to pay on the one hand and at the time the services are rendered, an expectation to be compensated * * * with knowledge of the intention to pay.' Yet, as we pointed out in Vosburg v. Smith, supra, 272 S.W.2d at 302, the intention to charge is frequently not so clear, in cases of this kind, because the plaintiff is precluded from testifying by the provisions of Section 491.010. The evidence here, granting it the most favorable intendment, was that plaintiff left gainful employment to return to her parents' home, and stayed on with her father after her mother's death for some ten years, foregoing, on one occasion, the pleasure of establishing her own home, and finally taking her father into her home when she...