139 Mo. App. 246 | Mo. Ct. App. | 1909
This case arises upon the following account filed by plaintiff- in the probate court of Greene county.
“The estate of Lillie Collins, deceased to Mary E. Rose, Dr.
“1893 To amount of money furnished Lillie to come to Kansas from Kentucky......$ 26.00
“1900 To value of organ given in exchange for piano purchased by Lillie........ 60.00
To services, household work, cooking, washing, etc., rendered for a period of fourteen years from 1894 or 1895 to 1908 at $200 per year............. 2,800.00
Total $2,886.00”
Plaintiff has appealed from this judgment, assigning as error, the action of the court in directing a verdict for defendant. It is conceded that the first item— twenty-six ($26) dollars, is barred by limitation, and, that there is no evidence to sustain the second item of sixty ($60) dollars, and, that as to these items the judgment is proper. The only contention is as to the item of twenty-eight hundred ($2800) dollars for services. The evidence tending to show the relationship of the parties, their condition, surroundings and manner of living, during the time for which services are charged, developed this state of facts.
The plaintiff is the mother of the deceased. The deceased was married at the age of sixteen to Collins, and removed to Kentucky in 1892. A year or so later, deceased, Lillie Collins, wrote to her. mother, who then lived at Winfield, Kansas, asking for money on which to return home. The mother sent twenty-six ($26) dollars, and Lillie returned to her mother, sick and in poverty. The mother, too, was very poor, having nothing except a little furniture. The mother and daughter continued from that day until the death of Lillie, in February, 1908, to live together as one family. The mother did most of the housework, the washing, cooking, etc, They remained in ■ poor circumstances until the daughter Lillie came into possession of some money, the date of which does not appear, but presumably about 1899 or. 1900, for, on February 13, 1900, she purchased a home in Springfield, Missouri, paying eight hundred ($800) dollars therefor. This home was comfortably furnished, they moved to it and lived there, except for one short interval, until the date of Lillie’s
There was some evidence as to the value of the work performed by the plaintiff. Lillie died in February, 1908, leaving an estate of a net value, including the home, of about fifteen hundred ($1500) dollars. The plaintiff offered a great deal of testimony, in which witnesses detailed statements made' by deceased in her lifetime, relative to a desire upon her part to compensate her mother for the labor she performed in the home, and, it is upon these statements alone that the plaintiff relies for a reversal of the judgment. Without detailing them in full we incorporate enough to show their general nature as follows:
In the presence of Mrs. Dowd, sister of the plaintiff, soon after her return from Kentucky, she said, in substance, to the plaintiff, “Mamma, if you will stay with me, I will never leave you, or forsake you. You have been very good to me, and I will repay you for all you ever do for me, and I will provide a home for you as long as I live.” To which the mother made no reply. At other times, she said to Mrs. Dowd, practically the same thing in the mother’s absence. To Mrs. Petty, about six months before her death, she said, in substance, that she got the home in Springfield purposely for her mother a home — that her mother had stuck to her and cared for her, and she got this home for her because she had no one else to care for her— that her mother was the best woman in the world; just waited on her like she was a second babe — did all the housework, etc. Mrs. Buckmaster heard Lillie say to her mother, in effect, that the work was pretty hard on her, but she expected to pay her for it. No rely by
The foregoing, we think, fairly states the substance of the testimony as preserved in this record. Was it sufficient to take the case to the jury?
The rules of law applicable to this case are well settled in this State, and are as follows: In cases in which the family relation exists, as it undoubtedly did in this case, the presumption is that services rendered by one member of the family to another are gratuitous, and to entitle one to recover for services performed while the family relation existed, the burden is upon the plaintiff to prove an express contract for payment, or, that there was an intention on the part of the servitor to charge, and, on the part of the recipient of the services to pay for such services at the time they were rendered. [McMorrow v. Dowell, 116 Mo. App. 289; Sloan v. Dale, 90 Mo. App. l. c. 90.]
The intention to charge by one, and to pay by the
A demurrer to the testimony should not be sustained if there is substantial testimony adduced in support of the plaintiff’s claim. By this is meant that it should satisfy a reasonable, fair-minded person of the truth of the claim, or, that it should be, at least, strong enough that fair-minded persons might differ as to the truth or falsity of the claim. [Baird v. Citizens’ Ry. Co., 146 Mo. 265, l. c. 281, 282; 2 Thompson on Trials, section 1663.]
Keeping these wholesome rules of the law in view and weighing the testimony in the light thereof, could fair-minded persons differ as to the issue involved in this case, or could but one result follow? Here is an account of twenty-eight hundred ($2800) dollars for fourteen years of service as a house-servant by a mother against a daughter. If the services were rendered in this capacity at all they began when both were very poor, and this condition continued for some time. Then the daughter becomes possessed of some means; a house is bought by her in Springfield, and the family home of poverty is changed to one of comfort. The daughter gives frequent expression of her affection for her mother, and her intention to pay her for what she does for her. Also to leave her property to her if she should die first. Had she done this, as she might very properly have done, this controversy would never have arisen. The expressions of the daughter above referred to began upon her return to her mother in 1893 or 1894, and were continued, without interruption, at intervals, to the time of her death. Sometimes in the presence of the mother — sometimes directly to her, and sometimes in her absence. The mother says nothing. When
We have examined carefully the cases cited by appellant, with other cases, and, while the courts have been very liberal in allowing claims for services against the estates of deceased persons, yet the evidence in all such cases must be weighed in the light of the relationship, conditions and surroundings of the parties, and that construction given it which comports with reason and justice. Where there is urgent necessity for the services, very slight circumstances have been held to be sufficient to make out a prima facie case. It is apparent that no general rule can be laid down as to what evidence is required, but each case must stand upon its own facts, but in the absence of an express contract there must be some evidence not only that the recipient
Our conclusion is that the real facts were that this mother and daughter lived all these years together exemplifying a mother’s love and a daughter’s devotion, and this was the tie that held them together, and not the expectation of payment for services rendered, and, that under this evidence no other conclusion could be fairly reached, and, that, therefore, the learned trial judge was right in directing a verdict for the defendant. The judgment is affirmed.