| Mo. Ct. App. | Jun 3, 1913
This action was begun in the probate court of Pike county by plaintiff, respondent here, exhibiting the following demand against the estate of
Plaintiff, Mrs. Matilda Kingston, is a stepdaughter of deceased, who married her mother many years prior to the period of time here involved. . Plaintiff’s mother died some, fifteen years before this action was begun, but during her life, after her marriage to deceased, she, deceased and plaintiff lived together as one family in a house belonging to the mother, in Louisiana, Missouri. After the mother’s death, plaintiff, who inherited the home, and the decased continued to live together in this house. The evidence shows that plaintiff treated the deceased as though he were her own father, and that he in turn seemed to' have a fatherly regard and affection for her. The deceased was a cabinetmaker by trade, had a little carpenter shop, and did little “odd jobs” of carpentering. He owned a house from which he received rents, and also drew a pension.
In support of plaintiff’s claim, one D. M. Pearson, a physician, testified that he knew deceased during his lifetime, and also the plaintiff, Mrs. Kingston; that he was the plaintiff’s physician for about ten years; that deceased lived with plaintiff for some ten or twelve years prior to his death; that the witness had been at plaintiff’s home quite frequently, and that deceased ate and slept there and made his home with plaintiff; that the witness had had several conversations with deceased in regard to his staying there with
It does not appear from the the evidence that deceased paid plaintiff any board. There is some evidence to the 'effect that he sometimes purchased supplies for the house; and, on the other hand, there is evidence tending to show that such purchases were made with money supplied by plaintiff, or that such supplies were purchased upon plaintiff’s credit.
We need say nothing as to the testimony concerning plaintiff’s claim for “nursing, darning, mending, washing, ironing, and taking care of” deceased, as the court by its instructions withdrew from the consideration of the jury everything except plaintiff’s claim for board.
There' is some testimony to the effect that deceased helped plaintiff with certain household work, but there is other testimony that he was not at home a great deal. It appears that deceased was quite fond of beer, sometimes drank to-excess, and frequently remained out late at night, rising very late the next morning. There is considerable testimony in the record to the effect that plaintiff made various efforts to have the deceased convey to her the property which he owned, or devise it to her by will. •
At the- close of plaintiff’s case defendant offered a peremptory instruction in the nature of a demurrer to the evidence,' which was refused by the court, and at the close of all of the evidence a like instruction offered by defendant was likewise refused. And it is
I. That the family relation existed between plaintiff and deceased is, under the evidence, beyond all dispute. And where such relation exists it is well established that the law implies no promise to pay for services rendered by one member of the family to another, or for maintenance provided by one member thereof for another. On the contrary, the presumption is, that snch services are rendered, or such maintenance is provided, gratuitously. In Hartley et al. v. Estate of Hartley, 173 Mo. App. 18" court="Mo. Ct. App." date_filed="1913-04-08" href="https://app.midpage.ai/document/hartley-v-estate-of-hartley-8266191?utm_source=webapp" opinion_id="8266191">173 Mo. App. 18, 155 S. W. 1099, the court speaking through Nortoni, J., said:
“Ordinarily, among strangers, where one renders valuable services to another, which he receives and appropriates, the law presumes they are to be compensated; hut where the close family relation appears, as here, this presumption does not obtain. Indeed, in such cases, the presumption goes to the effect that the services, so rendered are gratuitous, and that the member of the family performing them does not expect to charge therefor, nor the parent intend to pay. This presumption affects the matter solely as to the burden of proof, for it operates to cast the onus of repelling it upon plaintiff. [See Fitzpatrick v. Dooley, 112 Mo. App. 165" court="Mo. Ct. App." date_filed="1905-04-04" href="https://app.midpage.ai/document/fitzpatrick-v-dooley-8263891?utm_source=webapp" opinion_id="8263891">112 Mo. App. 165, 86 S. W. 719 ; Kostuba v. Miller, 137 Mo. 161" court="Mo." date_filed="1897-01-26" href="https://app.midpage.ai/document/kostuba-v-miller-8012327?utm_source=webapp" opinion_id="8012327">137 Mo. 161, 38 S. W. 946. See, also, Wagner v. Edison Elect. Illuminating Co., etc., 141 Mo. App. 51" court="Mo. Ct. App." date_filed="1909-07-20" href="https://app.midpage.ai/document/wagner-v-edison-electric-illuminating-co-8265229?utm_source=webapp" opinion_id="8265229">141 Mo. App. 51, 121 S. W. 329.]”
• As appears from the portion of the opinion quoted above, the rule that there is no implied agreement for compensation for services between persons in domestic relations, living together as members of a family, means merely that prima facie such presumption obtains. In the absence of any evidence, such services
This subject has been so thoroughly discussed andl considered by our courts that it is only necessary to direct attention to some of the more recent decisions involving this question.
In Fitzpatrick v. Dooley, 112 Mo. App. 165" court="Mo. Ct. App." date_filed="1905-04-04" href="https://app.midpage.ai/document/fitzpatrick-v-dooley-8263891?utm_source=webapp" opinion_id="8263891">112 Mo. App. 165, 86 S. W. 719, a case of this character, this court, speaking through Goode, J., said: “The burden devolves on the claimant to prove an agreement to pay him, either by direct testimony or by. circumstances justifying the inference that it was understood he was to be paid. In some jurisdictions nothing less than proof of an express agreement will be accepted as the basis of a judgment for compensation. But in this State the agreement may be deduced from circumstances.- [Cowell v. Roberts, 79 Mo. 218" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/cowell-v-roberts-8007542?utm_source=webapp" opinion_id="8007542">79 Mo. 218 ; Hart v. Hart, 41 Mo. 441" court="Mo." date_filed="1867-10-15" href="https://app.midpage.ai/document/hart-v-hess-8002291?utm_source=webapp" opinion_id="8002291">41 Mo. 441, 443 ; Guenther v. Birkicht’s Ad’mr, 22 Mo. 439" court="Mo." date_filed="1856-01-15" href="https://app.midpage.ai/document/guenther-v-birkichts-administrator-7999760?utm_source=webapp" opinion_id="7999760">22 Mo. 439.] Though there must be an actual agreement, established either directly or inferentially, it is not essential that it should have been put into words; but it is essential that there should have occurred what the name implies, namely, a meeting of the minds of the parties on the subject of compensation — a common understanding about it. It is important to distinguish between the nature of the promise to pay for beneficial services which the law implies from their acceptance and the agreement to pay inferred from facts showing one
And on this same subject this court again, in Cole v. Fitzgerald, 132 Mo. App. 17" court="Mo. Ct. App." date_filed="1908-05-26" href="https://app.midpage.ai/document/cole-v-fitzgerald-8264879?utm_source=webapp" opinion_id="8264879">132 Mo. App. 17, 111 S. W. 628, through the same judge, said: “Even granting appellant was in her lather’s home as a member of the family, it was not incumbent on her to establish by direct evidence a contract to pay her; that is to say, by some writing or the testimony of witnesses who heard the parties come to an agreement. It is enough for her to adduce evidence from which the jury might find she and the deceased understood her services were not voluntary, but were to be remunerated. We have pointed out in previous opinions that when courts say an express contract must be shown in cases like this, they only mean the law will not imply a contract if the family relation existed, and do not mean a contract must be proved by direct testimony. [Fitzpatrick v. Dooley, supra ; Fry v. Fry, 119 Mo. App. 476" court="Mo. Ct. App." date_filed="1906-05-08" href="https://app.midpage.ai/document/fry-v-fry-8264252?utm_source=webapp" opinion_id="8264252">119 Mo. App. 476.] From the earliest cases on the subject in this State, the courts have uniformly held an agreement or understanding to pay for work
In' the case before us, we think it cannot be doubted that the evidence was sufficient to .justify the submission of plaintiff’s case to the jury. The testimony of Dr. Pearson, and particularly the portion thereof which we have italicized above, taken together with the other facts and circumstances in evidence, is sufficient to justify the inference that there was a mutual agreement or understanding between plaintiff and deceased that the support and maintenance provided the latter was to be paid for. It would appear that there was the intention on the part of plaintiff, on the one hand, to charge therefor, and the intention of 'the deceased, on the other hand, to pay for that which he received. It was not necessary to prove the making of a contract in so many words; but that there was an actual contract — a meeting of the minds and a contractual understanding and intention between the parties —may be inferred from facts and circumstances in evidence. [See Hartley v. Estate of Hartley, supra.]
Here, as is usual in such cases, the existence of a contractual relation between the parties could be established only by indirect proof. Plaintiff was, of course, incompetent to testify; and the agreement, understanding, and intention of the parties could be shown only by way of inferences to be drawn from the testimony of other witnesses. That it was the understanding and intention of both parties that the maintenance provided deceased should be paid for appears to be a just and reasonable inference from the evi
It is urged by learned counsel for appellant, both in his brief and in argument ore tenus, that the evidence shows that the support and maintenance supplied deceased by plaintiff was furnished, not with the intention she was to be paid therefor, but in expectation and hope that the deceased would leave his property to her at his death. But the evidence does not appear to bear out this contention.' While it is true that there is evidence that plaintiff sought to have deceased convey or devise to her the real property which he owned, there is nothing to justify the inference that she boarded him during all of this period without an intention to charge therefor, merely trusting to receive something from him, as a bounty, at his death. Indeed, from the evidence as a whole, it would rather appear that plaintiff intended to charge deceased; but, inasmuch as he did not pay her, she sought to have him remunerate her by turning over to her his property or by leaving it to her by will. Her acts in this regard by no means negative the existence of an intention to charge for that which she furnished.
A careful consideration of the record convinces us that the demurrer to the evidence was properly overruled. There was substantial evidence tending to establish the facts necessary to be proved to make out a prima facie case for plaintiff. The weight to be given to the testimony of the witnesses, and the credibility of the latter, rested entirely with the jury.
III. By the other instruction offered by defendant and refused, it was sought to have the jury told in substance that plaintiff could recover only upon proof of an express contract between plaintiff and deceased
IV. Appellant further assigns as error the action of the trial court in sustaining an objection to a question asked the witness, Dr. Pearson, by counsel for .defendant, in the course of the cross-examination of this witness. As we have said, the witness was plaintiff’s physician, and it seems that he had treated her on numerous occasions. The question asked him was: “As a matter of fact, Doctor, you haven’t been paid for your services yet, have you?” This was objected to by plaintiff’s counsel as being immaterial, and the ob
While the appellate court does not ordinarily review the action of the trial judge in the exercise of his discretion in limiting the cross-examination of a witness, nevertheless it is said that “the right of cross-examination must not be unduly restricted; and, if such examination .is arbitrarily limited by the court, while being conducted by counsel in a proper manner, it is error.” [Jones on Evidence (2 Ed.), sec. 842.]
The question was not an improper one, and we are of the opinion that the court should have permitted it to be answered, and the objection that it called for something not material to the issues in the case was,
Nevertheless, wé áre not prepared to say that the action of the court in sustaining the objection to this question should be held to be reversible error. Section 2082, Revised Statutes 1909, provides that “the Supreme Court or Courts of Appeal shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” It does not appear that the error in question materially affected the merits of the action. Other questions were asked this witness for the purpose of testing his credibility and endeavoring to show that he had some motive in testifying as he did. These were answered without objection, and the right of cross-examination was not restricted otherwise than by sustaining the objection above noted. For the latter we think that we should not reverse the case, particularly in view of the statute to which we have just referred.
For the reasons given above the judgment of the circuit court should be affirmed. It is so ordered.