164 Mo. App. 567 | Mo. Ct. App. | 1912
Plaintiff, on May 1, 1911, filed in the probate court of Jasper county an account against the estate of Allen Fox,'deceased, for taking care of, boarding, and washing for, deceased, from June 1, 1904, until July 1, 1909, being for five years and one month, at twenty-five dollars per month, amounting to $1525, with interest at six per cent from July 1, 1909, having the usual affidavit attached thereto. The case was tried in the probate court and there was a finding for the defendant from which the plaintiff duly appealed to Division Number One of the circuit court of Jasper county. The case was then tried during the November term and judgment rendered on December 4, 1911, in favor of the plaintiff for $1578.38, and the case is here on defendant’s appeal.
The plaintiff offered evidence tending to show that Allen Fox lived at plaintiff’s house and that he was boarded and lodged and his washing done by the plaintiff from about June 1, 1904, until July 1, 1909, being for a period of five years and one month; that Allen Fox was about sixty years of age and in his second childhood; that he was in bad health and had a running sore in his ear. Lhere was evidence that when Allen Fox first came to plaintiff’s house to live she had gone to the woods and the whole family was away, and when they, reached home they found him there; that he had climed in the window and left his personal belongings, and that he came out in the yard and said, “Mamma, I come to stay until I die.” He said, “Mamma, you will get paid for this.” He made this statement a good many times. He was never seen to have any money in his possession, only what change he had in his pockets all the time. Virgie Cole for plaintiff also testified: “He never paid my mother anything that I know of. He said his money was in the bank and could not get it; he said Tillman had the check book. Tillman was his brother.” She also testified that she knew of Allen Fox going to see Tillman
It was shown on behalf of the defendant that the deceased, Allen Pox, had from ten to twelve thousand dollars loaned out and in the bank at Neck City or Alba, and therefore had ample means to pay for his board and lodging and washing. Jerry Smith testified for the defendant as follows; “I had some conversation with Mrs. Cole about compensating her for caring for Mr. Pox. This was when Mr. Pox was living at plaintiff’s house in Oklahoma and was coming back to Missouri. I gave Mrs. Cole ten dollars after we started from Cookson, and told her that I would give her that for her trouble in taking us to town. I told her I didn’t know whether she had been paid for her trouble for keeping him or not, or words to that effect, and she said he didn’t owe her anything. She told me that when I gave her the money. She said Mr. Fox didn’t owe her anything.” This witness further testified that after Allen Fox came with him to Missouri said Fox lived with him at his home near Alba or Neck City for about eighteen months, and that his work about the place and the house was ample to pay for his lodging and board and washing. Defendant offered Tillman Fox as a witness in his behalf, who testified as follows: “I live near Neck City. I am a brother of Allen Fox, deceased. Allen Fox lacked three days of being sixty-six years of age when he died. His physical condition during all the" time he lived with Mrs. Cole was good enough. He chopped wood and worked in the blacksmith shop all
It will be seen that at the trial when Tillman Pox was offered as a witness, the respondent, after show
The appellant complains because the trial court refused to give the following instruction:
“The jury are instructed that if they find and believe from the evidence that the plaintiff never made any claim or demand for payment for and on account of taking care of, boarding, and washing for, Allen
We think this was a commentary on the evidence and the court committed no error in refusing it. It is not the province of the court to charge the jury in respect to matters of fact nor to select out certain facts and tell the jury what weight shall be given them. We think the court in giving the following instruction on the same subject left no just ground for appellant to complain- “The jury are instructed that if you find from the evidence that the' plaintiff never demanded payment during the lifetime of Allen Fox for the services claimed to have been rendered by her in caring for, boarding and washing for him, that it must be presumed from such fact that the said Allen Fox had paid for his services, and that before you can find for the plaintiff under such circumstances, you must believe and find from the evidence that Allen Fox did not pay her for such services.”
Complaint is also made by the appellant of the following instruction: “The court instructs the jury that the burden is upon the defendant to prove to the reasonable satisfaction of the jury by a preponderance of the evidence the defense of payment for the services
It follows from what has been said that the judgment should he reversed and the. cause remanded for a new trial, and it is so ordered.