Witte v. Smith

• Decision Date: 14 May 1942
• Docket Number: No. 6340.,6340.
• Citation: 162 S.W.2d 604
• Parties: WITTE v. SMITH.
• Court: Missouri Court of Appeals

162 S.W.2d 604

WITTE v. SMITH.

No. 6340.

Springfield Court of Appeals. Missouri.

May 14, 1942.

Rehearing Denied June 4, 1942.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Action by Della Witte against Oda L. Smith, executor of the estate of Martha J. Smith, deceased, to recover compensation for services rendered to deceased, in which defendant filed a counterclaim for the amount due on a note. Judgment for plaintiff, and defendant appeals.

Affirmed.

F. M. Kinder, of Jefferson City, and Phillips & Phillips, of Poplar Bluff, for appellant.

David W. Hill of Poplar Bluff, for respondent.

SMITH, Judge.

This is the second time this case has been to this court on appeal. The first case is reported in 152 S.W.2d 661. A statement of the case was made in the above reported case. We deem it unnecessary to repeat the statement here, since the testimony in the main is practically the same here as that in the former trial. The assignments of error here are largely the same as made in the former trial, and passed on by this court in the former opinion. This court held that the evidence was sufficient to make the question of a contract one for the jury, and we say the same here. Since the evidence was considered in detail in the former opinion, and since it is practically the same in this case, we shorten this opinion by simply saying we follow the holding in the former hearing on this point. Both sides filed motions for new trial in this case, and both sides appealed. The plaintiff abandoned her appeal, and the case is considered only on the defendant's appeal.

The first assignment of error in the instant hearing is that the court erred in submitting to the jury the claim set out in plaintiff's petition; the second is that the court erred in refusing defendant's demurrer to the evidence submitted at the close of plaintiff's evidence; third, that the court erred in refusing a similar instruction at the close of all the evidence; seventh, that the court erred in submitting plaintiff's claim to the jury when the evidence showed there was no express contract between plaintiff and her mother; and ninth, the court erred in overruling defendant's motion for new trial.

These, or similar assignments, were determined against the defendant in the former hearing and we find no occasion to change that holding in this hearing.

We quote the sixth assignment, as follows: "The court erred in giving plaintiff's Instruction P-1 to the jury over the objection and exception of the defendant." Requested Instruction P-1 is as follows: "Now at the close of the whole case the Court instructs the jury that you cannot allow any attorneys' fee for collecting the one thousand dollar note read in evidence."

The record before us shows this requested instruction was refused by the court, so we think the appellant here meant his criticism for the court's action in giving Instruction P-2. This instruction is as follows:

"The court instructs the jury that, if you believe and infer from the evidence and the surrounding circumstances in this case, the Plaintiff, Della Witte, between November 4, 1934, and September 5, 1939, furnished to her mother and her mother accepted any board, lodging and nursing under a contract expressed with the intention and understanding of both that the mother would pay for such services and that the daughter would charge and take pay for same, and that Della Witte has not been fully paid therefor, then your verdict will be for Della Witte for the reasonable value of such services, less the amount due on the note read in evidence and mentioned in plaintiff's statement of demand and also mentioned in defendant's counter-claim, and less payments which have been made for such services, as shown by the evidence, if you find that the reasonable value of such services exceeds the total payments made thereon and the amount due on the note; on the other hand, if you find that the payments made, and the amount due on the note, exceed the total reasonable value of such services, then your verdict will be for the estate of Martha Smith for the total amount of such payments and the amount due on the note mentioned in the counter-claim, less the reasonable value of such services, as shown by the evidence.

"And you are further instructed that it is not necessary that plaintiff prove her case by a written contract, but that it is sufficient if she proves to your satisfaction, by statements and conduct of the parties and by the surrounding circumstances, that there was a contract and a meeting of the minds of the mother and daughter on the point and to the effect that the mother would pay and that the daughter would charge and take pay for such services, and that she has not been fully paid."

The complaint against this instruction is directed against the use of the words, "If you believe and infer from the evidence and the surrounding circumstances in this case."

The criticism is that this instruction permitted the jurors to journey outside of the record and the law and the evidence to find things on which to reach a verdict. While this instruction is not worded as some others might have written it, we do not think in its present form that it is reversible error. The expression, "If you believe and infer certain things from the evidence and surrounding circumstances in the case", is nothing more than saying that the verdict must be made up and a conclusion reached from the evidence and the circumstances shown by the evidence in the case. We must rule this point against the appellant.

The fourth assignment is that the court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff. We answer this by saying that our attention is not called to any specific instance where such evidence was offered by the plaintiff.

The fifth assignment is that: "The court erred in rejecting competent, relevant and material evidence offered by the defendant." Under this assignment, our attention is called to the court's ruling when Oda L. Smith, a brother of the plaintiff, was on the stand. The deceased had lived on the farm with him several years prior to her moving to the home of her daughter, the plaintiff, and when he was asked, "How many years did she live out there on the same farm?", an objection was made on the ground that it was immaterial in proving the contract with the plaintiff. The court sustained the objection on the theory that, "We are not going back of 1926", and that those transactions were not defensive to this case. We can see no reversible error in that ruling.

It is also contended that the court erred in rejecting the testimony of Oda L. Smith and F. M. Kinder, that plaintiff agreed to her mother's making a new will, and in it reducing the amount to be given to plaintiff, which, it was claimed, was a circumstance tending to show that she had no contract or agreement with her mother as to compensation she was to receive for any services she was to perform.

We quote from the abstract the proceedings when Oda L. Smith was on the stand, as to this point, as follows:

"Q. Now, do you remember shortly before your mother's death...