Witte v. Smith

• Decision Date: 20 May 1941
• Citation: 152 S.W.2d 661,237 Mo.App. 639
• Parties: Della Witte, Respondent, v. Oda L. Smith, Executor of the Estate of Martha J. Smith, Deceased, Appellant
• Court: Missouri Court of Appeals

152 S.W.2d 661

237 Mo.App. 639

Della Witte, Respondent, v. Oda L. Smith, Executor of the Estate of Martha J. Smith, Deceased, Appellant

Court of Appeals of Missouri, Springfield District

May 20, 1941

Rehearing Denied June 12, 1941.

Appeal from the Circuit Court of Butler County; Hon. Robert I. Cope Judge.

Reversed and remanded.

Francis M. Kinder for appellant.

(1) Plaintiff alleged as a basis of recovery that she performed services for her mother, expecting to be paid therefor out of the estate of her mother, and that the mother intended that she should be paid therefor out of her estate. There must be clear and convincing testimony of an express contract, and while such contract may be inferred from evidence, it cannot be implied. Smith v. Davis, 206 Mo.App. 446, 330 S.W. 670; Mabary v. Mabary, 173 Mo.App. 437; Bircher v. Boemler, 204 Mo. 554, 103 S.W. 40. (2) The court should have sustained defendant's demurrer at the close of plaintiff's case, or granted a new trial because under the most favorable construction of the evidence in favor of plaintiff's contention, it fails to prove a contract between the plaintiff and deceased, either expressed or implied. Brand v. Ray, 156 Mo.App. 622, 137 S.W. 623; Taylor v. George, 176 Mo.App. 215, 161 S.W. 1187; Crowley v. Dagley, 174 Mo.App. 561, 161 S.W. 366; Burt v. Gabbert, 174 Mo.App. 521. (3) The court having permitted plaintiff to prove statements on question of paying for her keep which favor plaintiff, it is fundamental that defendant may prove favorable statements made by deceased on same subject and no citations of authority are necessary. It was error to permit plaintiff and her husband to testify as to any general matters in the case. Taylor v. George, 176 Mo.App. 215, 161 S.W. 1187; Bone v. Friday, 180 Mo.App. 577, 167 S.W. 599; Daniels v. Goeke, 191 Mo.App. 1; Edmonds v. Scharff, 279 Mo. 79. (4) It was error to submit, as in plaintiff's instruction No. 1, the promissory note mentioned in said instruction as a set-off. No instruction should be given on any proposition which is not supported by proof. State ex rel. v. Dickman, 124 Mo.App. 653; Houk v. Railway, 116 Mo.App. 559; Fredrick v. Car Co., 125 Mo.App. 24, 102 S.W. 675; Holloway v. Barnes Gro. Co., 15 S.W.2d 917; Kuhlman v. Transit Co., 307 Mo. 707, 214 S.W. 788; Schumacher v. Breweries Co., 247 Mo. 141, 152 S.W. 13. (5) Failure to give defendant's instructions D-3 and D-4 was error and denied defendant the right to submit a proper defense that was both pleaded and proven. It was error to give plaintiff's Instruction No. 1, because it excluded defendant's theory of the case, and in fact it eliminated from the jury's consideration defendant's proof and pleading with respect to how deceased paid her way. Also plaintiff's Instruction No. 1 improperly declares the law, authorizing a verdict based on the bare expectation to pay board and keep by deceased and the expectation to receive pay on the part of plaintiff which is not enough to support a judgment. Smith v. Davis, supra; other cases cited above.

David W. Hill for respondent.

(1) There is no dispute in the evidence of the intention of the mother to compensate her daughter by a bequest through a new will, which was never made. It is not necessary to prove an express contract, but a contract may be inferred; however, the pleadings in the trial court admit a contract, the respondent's statement alleging the services and obligation to pay for same and appellant's answer pleading payment and tendering $ 176 additional for such services -- the appellant is bound by his answer. Balsano v. Madden, 138 S.W.2d 660; Mittendorf v. Koeller, 145 S.W.2d 470; Brunert v. Boeckman, 226 Mo.App. 503, 258 S.W. 768; Wharton v. Denby, 222 Mo.App. 260; Patrick v. Crank, 110 S.W.2d 381; Ronsiek v. Boverschmidt's Admr., 63 Mo.App. 421; Ramsey v. Hicks, 53 Mo.App. 190; Koch v. Hebel, 32 Mo.App. 103; Lillard v. Wilson, 178 Mo. 145, 77 S.W. 74; Allen v. Allen, 101 Mo.App. 676; Cole v. Fitzgerald, 132 Mo.App. 17, 111 S.W. 628. (2) Appellant waived his objection to the court overruling his demurrer at the close of plaintiff's case, by thereafter submitting evidence. (3) (a) Self-serving statements are incompetent. Bosard v. Powell, 79 Mo.App. 187; Ragsdale v. Achuff, 324 Mo. 1159, 27 S.W.2d 6. (b) The husband, not a party to the suit. nor wife's agent, was a competent witness for her. Sec. 1892, R. S. 1939; People's Co. v. Aetna Co., 40 S.W. 535; Ragsdale v. Achuff, supra; Malone v. Harlin, 220 Mo.App. 102; Tucker v. Tucker, 31 S.W.2d 238; Miller v. Smith, 275 S.W. 769. (4) (a) The $ 1000 note was shown in the inventory of the estate read in evidence, and plaintiff's statement, verified as the law requires, admitted that plaintiff owed the deceased $ 1000 and four per cent interest for five years, while the answer stated that the plaintiff owed the deceased $ 1000 with eight per cent interest; that statement in plaintiff's statement was an admission, while the statement in defendant's answer was an allegation, and, if the defendant had not wanted the jury to consider the note and interest as admitted in plaintiff's statement, it was up to the defendant to prove his allegation of eight per cent interest; the defendant had the note in his own possession. Respondent's instruction was proper. Jennings v. Kinealy, 40 S.W.2d 520; Sec. 192, R. S. 1939; Cases under (1). (b) The statute requires that the judgment in a case like the one at bar shall be rendered for the balance, which was done in this case. Sec. 192, R. S. 1939; Feurt v. Lotspeich, 221 Mo.App. 335, 273 S.W. 240. (5) Appellant's instructions D-3 and D-4 were properly refused because neither of them properly declared the law of this case. No. 3 refers to a "Gratuity" by a will, while there is no evidence of any such gratuity, but the testimony is to the effect that she would make a new will and "pay" for her care and attention; there is no evidence to support either of the instructions, and each of them ignores the issues in this case and ignored the state of the pleadings. Each would have been confusing, misleading and might have caused harm, if given. Cases under (1). (6) Points 1, 2, 4 and 7 in appellant's assignment of errors are not properly contained in his motion for a new trial, and their consideration is precluded by an unbroken line of decisions of the appellate courts of this State. School District v. Phoenix Co., 297 Mo. 332, 249 S.W. 51; Bartner v. Darst, 285 S.W. 449; Wheeler v. Cantwell, 140 S.W.2d 744. (7) The allegation of objection to incompetent evidence in the motion for a new trial does not preserve the objection to the incompetency of any witness. Drake v. K. C. Pub. Serv. Co., 333 Mo. 520, 63 S.W.2d 750; Thompson v. Martin, 133 S.W.2d 677. (8) The evidence will be considered in this court in the most favorable light to the plaintiff; the credibility of the witnesses was for the jury; the weight of the evidence was for the trial court and the jury; and the verdict will not be disturbed if there is any substantial evidence to support it. Anderson v. White, 210 Mo.App. 275, 235 S.W. 834; Phillippi v. New York R. Co., 136 S.W.2d 339. (9) The plaintiff was competent as a witness to testify about matters that happened after the appointment of the executor. Sec. 1887, R. S. 1939.

Blair, P. J. Smith and Fulbright, JJ., concur.

OPINION

BLAIR

Respondent will be referred to here as plaintiff and appellant will be referred to as defendant. Martha J. Smith (hereinafter referred to as the deceased), the mother of plaintiff and defendant and other children, died September 5, 1939, at the home of plaintiff. Deceased then had property to the value of about $ 24,000 and died testate, giving to her son Oda L. Smith (defendant) the sum of $ 4,000 and certain lands and to Della P. Witte (plaintiff), the sum of $ 4,000 and an automobile, and made other bequests in said will, not necessary to be noticed here. After payment of the specific bequests, the residue, if any, was given to plaintiff and defendant, as aforesaid, equally, share and share alike, and said son, Oda L. Smith, was appointed executor.

Said will was duly probated and, after paying said specific bequests, it seems to have been conceded that the residue of the estate was sufficient to pay plaintiff and defendant about $ 9,000 each, including the specific bequests, with each owing the estate of deceased a note for $ 1,000; the rate of interest only being in dispute.

Plaintiff filed an account in the Probate Court of Butler County against the estate of the deceased for board, nursing, care, etc., of deceased, and, on plaintiff being successful in the probate court, defendant appealed to the Circuit Court of Butler County, where plaintiff again prevailed and the jury returned the following verdict:

"We, the jury, find the issues in this cause for the plaintiff, Della Witte, and find that the amount due to her from the estate of her mother, after allowing all just set offs, in (is) the sum of ONE HUNDRED DOLLARS."

From this verdict, it appears that the jury, in its award to plaintiff, took into consideration the thousand dollar note concededly owing by her to the estate of deceased. The case seems to have been tried on this theory below. From the judgment entered on the above verdict, defendant was granted an appeal to this court.

There was evidence pro and con as to what sums of money and what goods deceased had turned over to plaintiff in her lifetime. This will not be gone into by us, as we regard the verdict of the jury, so far as justified, as settling all disputed questions of fact. There was no evidence of any express contract between the plaintiff and the deceased that such alleged board, care, nursing, etc., were to be paid for. There was evidence of...