258 S.W. 768 | Mo. Ct. App. | 1924
The controversies herein arose out of two demands filed in the probate court by a husband and his wife, respectively, against the estate of Ferdinand Boeckmann, deceased. By agreement they were tried together as one case in the circuit court, and, upon being appealed, were briefed, argued and submitted as if they constituted but one case. Hence, for convenience and to avoid a repetition of many of the same matters, we will dispose of them in one opinion.
Each demand is in the form of an account, beginning March 26, 1905, and continuing uninterruptedly to December 17, 1920, the day Boeckmann died. The wife's account is for "washing, ironing and cooking" from March 26, 1905, to January 1, 1915, and for "cooking" only from the last named date to decedent's death. The husband's account is for "room, board, fuel and light" from March 26, 1905, to January 1, 1917, and for "room, board, fuel,nursing and light" from said last named date to the death of decedent. The first item of each account is for the services stated therein from March 26, 1905, to January 1, 1906, and the services rendered in each year thereafter are put down as one separate item at so much per year, the whole amounting in the wife's case to $942 and having no credits in deceased's favor. In the husband's account, the items charged amount to $3579, with a credit thereon "for service rendered by deceased for claimant from March 26, 1905, to December 31, 1917, at $6 per month, $864." Every item of the husband's account includes "board," and every item of the wife's account includes "cooking;" but the instructions, submitting the wife's case, covered "washing and ironing" only. Hence, as the last six items of the wife's account (beginning January 1, 1915, and continuing to the end) were for "cooking" only, she did not recover for any services rendered on or after January 1, 1915. As Boeckmann died December 17, 1920, the last services rendered by the wife, for which she recovered, were performed more than five years prior to decedent's death.
The evidence in support of each demand is, in large measure, the same but wherever there is any difference, or may appear to be any difference, in the evidence offered in support of the two the same will be hereinafter carefully noted.
The evidence offered in support of the demands tends to show the following facts:
On March 1, 1900 Boeckmann, who was a childless widower then about fifty-five years old, leased his farm for a period of five years *497 to John Brunnert, one of the claimants herein and lessor's second cousin of the half-blood. Thereupon Brunnert came to the farm, took charge thereof and Boeckmann lived with him. The lease provided that Boeckmann was to have his board free for the first year but was "to do a little work for his board every year thereafter." Shortly after the execution of the lease, Brunnert married and brought his wife (the other claimant), to the farm. The two claimants and deceased were all Germans and uneducated.
At the expiration of the lease Brunnert bought the farm for $4000 of which $2000 was paid in cash. (The other $2000 was paid in small installments through a period of years.) When Brunnert agreed to buy the farm an oral agreement was also made that Boeckmann would leave the farm and reside elsewhere.
But Boeckmann did not move away. He continued to live at the Brunnert home, occupying the separate room he had theretofore occupied, carrying the key thereto, and taking his meals with the family. The Brunnert children were taught to call Boeckmann "Uncle" and they did so, though they used the same term to any stranger in the home, whether boarder or guest, and Mrs. Brunnert used that term when speaking to or of the old gentleman in the presence of the children.
After Brunnert bought the farm he told Boeckman a number of times to look for another home, and the latter said he would go, and he did make inquiries of various persons with reference to room and board and some of these inquires could well be said to be efforts on the part of the old man to obtain lodging and board elsewhere. Nothing came of these efforts. Boeckmann did not secure a place elsewhere and on one occasion when Brunnert told the old man to get a place to stay elsewhere, the old man replied that it was not so easy for him to do. Throughout the time elapsing between the purchase of the farm and the old man's death, claimants repeatedly asked him to leave and on these occasions he would agree to do so but never did. Frequently they would say, in his presence and hearing and perhaps to him, that they "couldn't board anybody for nothing" but to this he would often make no reply, and at other times when the subject was broached, "he got awful mean and we didn't like to have a disturbance in the house," and for this reason the wife says she let him alone, always thinking he would go.
After the expiration of the lease and the purchase of the farm, no express agreement or arrangement was made with Boeckmann that he could stay there, nor was anything said as to what he should pay, and they "never demanded a nickel" of him in payment for the services rendered him though it is conceded he "was a man of means, and had money in the banks." At no time during the period in which Brunnert was paying, in small installments, the *498 $2000 he owed on the purchase price of the farm, did he ever suggest to Boeckman that a settlement between them be had or that any sum for services rendered should be credited on said indebtedness or that a deduction therefrom he made on that account.
The evidence of claimants further discloses that during thefirst ten or twelve years after Brunnert bought the farm. Boeckmann "shucked corn sometimes, cut a little fire wood, mostly for his own stove, feeding the cattle sometimes," and thatduring the later years of his life, "he did a little work for pasture; shucked sometimes a little corn: burned a little scrubs (shrubs or brush?) or something like that:" that he never worked at Brunnert's direction or under his command or supervision, but only when he felt inclined to do so, and when he didn't feel like it he didn't work.
Claimants' evidence further to the effect that during the last five or six years of decedent's life he was "a sick man," afflicted with a kidney and bladder disease so that he was unable to control his urine, and, in consequence, his clothes and also his bed were at all times saturated therewith, so that an offensive odor was present with him, and, emanating from his room, permeated the house so that the chinks or cracks in his room had to be stuffed with rags in an effort to keep the smell out of the rest of the house.
At no time during the years the old man lived with claimants did either of them ever specifically ask the old man to pay his board or tell him he was being charged therefor, nor did either of them ever expressly tell him that they were intending to charge him or were expecting that he would eventually pay for the services he was receiving. Neither of the claimants kept any memorandum or written record or account of the charges contained in their respective demands. Both of the accounts in said demands were made up from memory alone after Boeckmann's death.
At the opening of the trial, defendant interposed the five-year Statute of Limitations against each demand: and at the close of the whole evidence defendant offered demurrers to the evidence, but these were overruled. Defendant then invoked the five-year Statute of Limitations against each demand by praying instructions telling the jury in effect, that any services rendered more than five years prior to decedent's death were barred by said Statute of Limitations. These were also overruled, and the case was sent to the jury. Two verdicts were returned, one in John Brunnert's favor for $1400, and the other in favor of Mrs. Brunnert for $900. Judgments being rendered in these, the defendant appealed.
We will first consider John Brunnert's demand.
It is true that in the sense of close blood kinship and a moral obligation or kindly desire on that account to support and care for deceased a family relationship did not exist between claimant and *499
deceased. But that is not the sense, or at least is not always the sense, in which the phrase is used in determining whether a claimant is or is not entitled to pay for services in cases where the question of family relationship arises. If two persons live together in the same household, concurrently rendering services to each other and each accepting services from the other, then in the absence of an express contract that payment is to be made inaddition to the benefit derived from the arrangement or relationship under which they are living, the law presumes such benefit to be the full recompense to each for the services rendered and that neither intended to charge or to accept pay for the services he rendered, and the relative pecuniary value of the services rendered by each is not material. [Davis v. Davis, 9 Car. P. 87; Ryan v. Lynch,
But if any of these last mentioned services were rendered more than five years prior to the death of decedent, no recovery can be had for such because they are barred under section 1317. Revised Statutes 1919. There is nothing to show that the account is an "open running account" for there is no evidence from which it can *502
be said "that the conduct of the parties makes it fairly inferable that it was their intention to have a future adjustment." [Poague v. Mallory,
The judgment in favor of John Brunnert is therefore reversed, and, as to him, the cause is remanded for a new trial involving only the items for which recovery is herein permitted.
With reference to the wife's demand, however, the case seems to stand upon a different footing. In the first place, the services for which she recovered were "washing and ironing," and these are not usually considered a part of one's board and lodging. In the next place, there is nothing in the way of services rendered by Boeckmann to her which could in any way induce him to believe that he was rendering her compensation in return for what she was doing for him. We cannot say, as a matter of law, that the washing and ironing she did for him was done by her as a housewife for her husband or as a part of the latter's services rendered to the old man. The evidence is that she kept boarders and retained for herself the money thus made. Neither should it be said, as a matter of law, that a family relationship existed between her and decedent so as to prevent her recovery. Neither can we say that, conclusively, she did not intend to charge for her services. The evidence, if believed, is such that the jury could find that there was no family relationship and that she intended to charge and that Boeckmann, as a reasonable man, must have known that he was expected to pay her, and in that situation unless there was a family relationship the law will imply that he intended to pay her. He knew he was not rendering her any service and from his conversation with her, the jury could well find that he knew she was not rendering him service for nothing or as a member of the family. When she would mention the subject to him he would get ugly about it; and he told one witness that Mrs. Brunnert did not want him there and he would have to go away. We do not understand that one can avail himself of the services of another, knowing that he has no claims on such other for free services and knowing that the other is not rendering the services for nothing, and yet secretly not intend to pay for them and in that way *503
avoid payment. In such case the law will imply a promise to pay on his part, and recovery therefor can be had unless barred by limitation. [Fitzpatrick v. Dooley,
All of the services rendered by the wife were performed more than five years before decedent's death. Is she barred by section 1317, Revised Statutes 1919, the five-year Statute of Limitation? She is, unless she comes within the exception granted to married women in section 1323 of the same article of the statute which provides that —
"If any person entitled to bring an action in this article (art. 9) specified, at the time the cause of action accrued, be either . . . or a married woman, such persons shall be at liberty to bring such actions within the respective times in this article limited after such disability is removed."
In Throckmorton v. Pence,
Defendant urges that section 1323, Revised Statutes 1919, confers upon a married woman merely the privilege, if she chooses to avail herself of it, of bringing her action within the statutory period after she has become discovert, but that to avail herself of such privilege, she must not sue while still covert but must wait until she has become discovert, and as she sued while still under coverture she did not choose to come within section 1323, and, not being within its exception, she is barred by section 1317. In other words, if a married woman waits until her husband dies, she is not barred, but having sued after five years but while still a married woman, she is barred. We cannot accept such construction of the statute. It is true section 6767, Revised Statutes 1889, contained the clause that *504
"the time during which such disability shall continue shall not be deemed any portion of the time in this article limited for the commencement of this action" while no such clause was in section 6779. Revised Statutes 1889 (now section 1323. Revised Statutes 1919). But this does not affect the rule adopted by the Supreme Court. In the Lindell case (142 Mo. l.c. 77) the court, quoting Wood on Limitations with approval, says: "the circumstances that the Legislature has clothed them (married women) with these rights (exemption from limitation statutes), without making any change in the Statute of Limitation with regard to them, indicates an intention on the part of the Legislature that they shall still remain within the exception therein contained." It was no doubt because of these decisions that the Legislature in 1917 repealed section 1881, Revised Statutes 1909 (then the same as section 6767. Revised Statutes 1889), and enacted what is now section 1307. Revised Statutes 1919, and omitted married women entirely (Laws 1917, p. 205), and afterwards in 1919 (Laws 1919, p. 496) also enacted section 1308, Revised Statutes 1919, giving married woman, in all cases where her rights accrued thereafter ten years in which to bring an action for realty and providing a certain time after the enactment of the statute in which to bring an action upon rights which had theretofore accrued. In other words, as to real actions, the Legislature now requires married women to sue within the same time as others are required to do in real actions. The Legislature, however, made no change in section 1323 but left it as it had been. Applying the principle contained in the above quoted excerpt from the Lindell case, as the Legislature have not seen fit to take married women out of the exemption given in section 1323, it would seem that, unless the terms of said section requires the construction insisted upon by defendant, we must hold that plaintiff is exempt from the limitation in section 1317, even though she has not waited until she has become discovert but has brought her suit while still a married women. This is in accord with the principle announced in the Lindell case that mere ability to sue does not impose an obligation to do so, and where a married women can sue, either with or without her husband, failure to do so will not subject her to a plea of the Statute of Limitations. That this applies also to section 1323 is apparent from the general language used. Furthermore, Judge GRAVES, in his dissenting opinion in Powell v. Bowen,
Instruction No. 5, submitting Mrs. Brunnert's claim, omits to require the jury to find that at the time the services were rendered, she intended to charge and decedent understood, or under all the facts and circumstances should have understood, that compensation was to be made. This omission rendered the instruction erroneous. [Wood v. Lewis,
For this reason the judgment in her favor must also be reversed and the case remanded for a new trial. It is so ordered. All concur.