Wood v. Estate of Lewis
| Decision Date | 02 June 1914 |
| Citation | 167 S.W. 666,183 Mo.App. 553 |
| Parties | FREDERICK MORTIMER WOOD, Respondent, v. ESTATE OF MINNIE R. LEWIS, Deceased, EUGENE B. MING, Administrator, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Franklin Circuit Court.--Hon. R. A. R. A. Breuer, Judge.
REVERSED.
Judgment reversed.
John W Booth for appellant.
In the case at bar the family relation appears from plaintiff's evidence, and there is no evidence whatever to overcome the legal presumption that the service rendered by the one to the other member of the family was a gratuitous service. Therefore the court erred in refusing to give to the jury the instruction in nature of a demurrer to the evidence asked by defendant. Mabary v. Mabary, 173 Mo.App. 437; Lambert v. Hodgdon, 172 Mo.App. 24; Brand v Ray, 156 Mo.App. 622; Cupp v. McCallister, 144 Mo.App. 111; Fitzpatrick v. Dooley, 112 Mo.App. 165; Green v. Buchanan, 129 Mo.App. 297; Sloan v Dale, 90 Mo.App. 87; Lawrence v. Bailey, 84 Mo.App. 107; Finnell v. Gooch, 59 Mo.App. 209; Bittrick v. Gilmore, 53 Mo.App. 53; Louder v. Hart, 52 Mo.App. 377; Callahan v. Riggins, 43 Mo.App. 130; Lippman v. Tittmann, 31 Mo.App. 69; Woods v. Land, 30 Mo.App. 176; Bircher v. Boemler, 204 Mo. 554; Lillard v. Wilson, 178 Mo. 145; Cowell v. Roberts, 70 Mo. 218; Whaley v. Peak, 49 Mo. 80; Hart v. Hart's Admr., 41 Mo. 441; Morris v. Barnes' Admr., 35 Mo. 412; Guenther v. Birkicht's Admr., 22 Mo. 439; Smith v. Myers, 19 Mo. 433, 15 Am. & Eng. Ency. of Law (2 Ed.), p. 1083.
James Booth and Jesse H. Schaper for respondent.
The trial court did not err in overruling the demurrer to the evidence asked by defendant at the close of all the evidence in the case. (a) In an action like this for board and lodging furnished and services rendered at the instance and request of defendant's intestate, proof that the board and lodging was furnished and that the services were performed and that she accepted the same made a prima-facie case. The law will, in suc ha case, imply a promise on the part of the intestate to pay the reasonable value of the board and lodging furnished and services rendered. Sprague v. Sea, 152 Mo. 327. (b) The mere fact that plaintiff was a first cousin in and of itself raised no presumption that he was rendering his services and furnishing her board and lodging gratuitously. In such a case it is a question peculiarly within the province of the jury, taking into consideration the nature and degree of the relationship, the circumstances in life of the parties, and other matters which may affect it, whether or not there was an implied contract for compensation. Sprague v. Sea, 152 Mo. 327; Bowman v. Shelton, 158 S.W. 494; Cole v. Fitzgerald, 132 Mo.App. 17; Lillard v. Wilson, 178 Mo. 145. (c) In cases of this kind, no absolute rule of law can be laid down. Whether there was an implied contract for compensation, or whether it was a mere gratuity, are questions to be determined by the jury upon the evidence, after taking into consideration the circumstances in life of the parties, the degree of relationship, and all the other facts which may affect the case. Whaley's Ex'r v. Peak, 49 Mo. 80; Smith v. Myers, 19 Mo. 433; Guenther v. Birkicht's Admr., 22 Mo. 439; Hart v. Hart, 41 Mo. 441. (d) If it be doubtful under the evidence whether the services were gratuitously rendered, or whether there was an intention on the one side to charge and on the other to pay, the case should be left to the jury to determine from all the facts and circumstances in evidence, whether or not there was an implied contract for compensation. Voerster v. Kunkel, 86 Mo.App. 194; McQueen v. Wilson, 51 Mo.App. 138. (e) And whether the services were intended as a gratuity or not, is a question to be determined by the triers of the facts. Kerr v. Cusenbary, 60 Mo.App. 558; McQueen v. Wilson, 51 Mo.App. 138.
This is an action founded upon the following demand presented to the probate court of Franklin county for allowance against the estate of one Minnie R. Lewis, deceased, by the respondent Wood, viz.:
A jury trial in the probate court resulted in a verdict for the claimant for $ 1700, which was thereupon duly allowed and classified as a demand against the estate. Upon the administrator's appeal to the circuit court, and a trial there de novo, before the court and a jury, there was a verdict and judgment for the claimant, and the case is here upon the administrator's appeal.
Minnie R. Lewis, deceased, was a cousin of respondent, being the daughter of a sister of respondent's mother, Mrs. David P. Wood. She was born in 1868 or 1869. Her mother died in 1871, and about two years later she was taken to the home of respondent's father, David P. Wood, who resided upon a farm in Franklin county, where she lived for some two or three years. Then her father, Dr. Lewis, having married again, took her to his home and kept her until his death in February, 1879. A few months after his death she was again taken to the home of respondent's father, who was then appointed her guardian, and continued to reside in the latter's home until September, 1894. Respondent, who it seems was born in 1860, lived in this home--that of his father--until 1901, when, having married two years previously, he moved elsewhere with his wife and a child, and in 1894 was living upon a farm a few miles from his father's place. In September of the latter year, Minnie Lewis came to live with him, and remained in his home until her death in 1910.
It appears that she came to respondent's home because the latter's father, with whom she had been living, had arranged to rent to others the greater portion of his house, and she could not well remain there. It seems that she asked respondent's father to request respondent to come after her, and that respondent thereupon sent a man with a wagon and had her brought, with her trunk, to his home.
Though the deceased had lived in respondent's home from September, 1894, to the time of her death in August, 1910, it will be seen that the account filed as the basis of the demand covers only the period subsequent to August 28, 1900.
The respondent was called by the appellant administrator as a witness, his incompetency being waived. As to what took place at the time that Minnie Lewis came to his home, he testified that he sent for her upon being told that such was her request, and that nothing whatsoever was said as to the terms upon which she was to live with him. He said: "She just come here like all the folks and brought her trunk with her." He stated that no arrangement was ever made as to her paying for board and lodging, and that he never at any time made any demand on her therefor; that though he had been accustomed for about twenty years to "keep a book," relative to "anything that happens about the place," no account was kept against the deceased.
It appears that in 1891 respondent borrowed one hundred dollars from the deceased, giving his note therefor. This money was never repaid, though it appears that respondent offered to repay it to deceased a few years later when the latter was contemplating making a trip to Colorado, thinking that she would need the same, but she would not accept it; and it appears that she thereafter indicated that she did not want the note to be paid. This is the note for which respondent gives credit in the account filed as the basis of the demand.
Respondent's son, Lloyd Wood, who was about twenty-two years of age at the time of the trial, when asked, upon cross-examination, what board his father charged Minnie Lewis, said: "None that I know of." Upon being questioned, upon redirect examination, as to what he knew of his own knowledge as to whether any charge was made deceased for board, he said: "I know there wasn't." Q. "So far as you know?" A. "Yes." He also stated that no account was ever kept against the deceased; and that she had never paid anything for board.
It appears that the deceased was not in robust health for many years, though there is evidence that she helped respondent's wife more or less with the latter's lighter household duties, and that she was quite industrious. There is testimony to the effect that she helped with the sweeping and cleaning of the rooms, would "wait on the table" at times, assisted in getting the children ready for school, and performed other duties of a like character and that she gave respondent's daughter music lessons. A cousin of respondent and of deceased, a physician, testified that upon one occasion, in 1901, when the deceased had been taken sick while upon a visit in Washington, Missouri, and,...
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