Finnell v. Gooch

Smith, P. J. This is an action which was brought in the probate court by the plaintiff against the •defendant, who is the administrator of the estate of Edward G-ooch, deceased. The cause was removed by appeal to the circuit court where there was a trial which resulted in a judgment for the plaintiff and from which the defendant has appealed. The sole ground of the defendant’s appeal is, that the circuit court erred in refusing to instruct the jury at the conclusion of the evidence, to the effect that under the law •and the evidence the verdict should be for defendant. The evidence abundantly proves that in March, 1886, Edward Gooeh, a feeble and decrepit man, á widower over eighty years of age, was left homeless by the removal from Missouri to Kansas of a grandson [212] with whom he had lived for some years. He then went to reside with his daughter, the plaintiff in this case, who was a widow past middle life, of humble-circumstances, who lived upon a rented farm near the little village of Roanoke, and who looked to the labor of a dutiful son then just coming of age, aided by her own industry and frugality, for the maintenance of' herself and children in their simple home. Into this, home her aged father was taken and made welcome. He lived there continually from March, 1886, until his. death, in March, 1893. As to the weak and dependent condition of the old man, his frequent illness, the constant and exacting attention which his condition required, and the faithful and unremitting kindness and devotion of his daughter and her children to his needs, there is no question made. It is conceded that plaintiff nursed him and cared for him during these years, made the best provision for his comfort that her means allowed, treated him with the utmost consideration and affection, and that, her services were worth all that she claims. It is clear that in consequence of the relation of the plaintiff to the deceased that the ordinary presumption of an agreement to pay for the services which the-former is conceded to have rendered the latter, does not obtain. Unless the record discloses some substantial evidence of an expectation on the part of the plaintiff' to receive, and on that of the deceased to pay, and that the service was rendered and accepted in recognition of such expectation, there ought to have been no recovery. There must have been such a contract between the parties as the law could enforce. The general rule-between strangers, that whenever service is rendered and received, a contract of hiring, or an obligation to pay, will be presumed, does not apply in a case of this kind. The relationship of father and daughter exist [213] ing between the parties raises the presumption that the services for which compensation is claimed were acts of gratuitous kindness prompted by daughterly affection; Woods v. Land, 30 Mo. App. 176; Brock v. Cox, 38 Mo. App. 40; Callahan v. Riggins, 43 Mo. App. 130; Penter v. Roberts, 51 Mo. App. 222. That there is some evidence tending to support the verdict will appear by reference to the following excerpts from the evidence presented by the record. A. M. Finnell testified that the decedent “came there and told her that this was the only place he had to go, the only child there was here, and if we took care of him and waited on him he would pay her for her trouble;” that, though the witness never heard the plaintiff, his mother, say anything about it, he heard his grandfather, the deceased, say that he “expected to pay her.” Mary J. Mott testified, that at one time she heard a conversation between plaintiff and deceased in which plaintiff informed deceased that she expected compensation and to which he replied, “I expect you to be paid, I don’t want you to wait on me for nothing.” And at another time the witness heard a conversation in which deceased declared his purpose of compensating plaintiff for her services. Ida Beltz testified that she often heard deceased say that he wanted plaintiff to have a larger part of his estate than the yest of his children, to pay for her services and attention to him. He said he wanted to indemnify plaintiff and her family for their kindness to him. The testimony further showed that the deceased had, during the six years he had lived with plaintiff, only bought for the use of her family about $20 in groceries and had given plaintiff $2.50 in money. The evidence of the plaintiff’s poverty and the comparatively comfortable circumstances of the deceased, when considered in connection with the other evidence of [214] repeated declarations of his purpose to pay her and his knowledge that she expected it, would, it seems to us, go far towards raising the presumption that the services were rendered and received with the expectation that the deceased would compensate plaintiff for the same. Anyway, there, was substantial evidence on both sides of the issue tried, and for that reason we are powerless to disturb the verdict. We can not perceive from the record that there is such a preponderance of evidence against the verdict as necessarily to imply passion or prejudice on the part of the jury. The trial court could not have done more than to leave it to the jury, as it did, to determine the weight and credibility of the testimony and the amount, if any thing, the plaintiff was entitled to recover, and having done so the verdict must be regarded as conclusive on us. It follows that the judgment must be affirmed. All concur.