Hays v. Estate of Miller

STURGIS, J. This suit originated in the probate court of Polk county, Missouri. Plaintiff there filed the following claim: “DEMAND' AGAINST ESTATE. The Estate of Syntha E. Miller, Deceased, To S. C. Hays, Dr. 1900 Dollars Cts. To Board and nursing from April, 19001, until the 3rd day of July, 1913, at $20 per year........... 260' 001” To this is appended the affidavit of the claimant, in usual form, to the effect that he has given credit to the estate of Cynthia E. Hays, deceased, for all payments and offsets to which it is entitled. The defendant administrators appeared in the probate court and filed an answer and counterclaim founded on an account for labor performed by the deceased for plaintiff during the same period. A jury trial was then had in the probate court, resulting in a judgment for plain — 77 — tiff. On appeal to the circuit court the cause came on for trial on the same pleadings and with the same result and on the first witness being sworn the defendant objected to the introduction of any evidence for the reason the petition fails to state facts sufficient to constitute a cause of action. This is the first error assigned for our review. It should be again noted that the method of challenging the sufficiency of pleadings by objecting to the introduction of evidence thereunder is not in favor with our courts. The pleadings should be settled before going to trial and to this end any objection thereto should be presented by demurrer or proper motion in order that the court may rule on same, permit amendments to be made, etc., before the trial. Only such objections as are necessarily and absolutely fatal to the pleadings will be allowed in this way. [Porter v. Railroad, 137 Mo. App. 293, 296, 117 S. W. 680; Wilson v. St. Joseph, 139 Mo. App. 557, 561, 123 S. W. 504; Patterson v. Traction Co., 178 Mo. App. 250, 256, 163 S. W. 955; Downs v. Andrews, 145 Mo. App. 173, 130 S. W. 472; State ex rel. v. Delaney, 122 Mo. App. 239, 99 S. W. 1; Haseltine v. Smith, 154 Mo. 404, 55 S. W. 633. Such an objection does not cover a case where a cause of action is only defectively stated, but the allegations must be construed most favorably to plaintiff and every fair inference drawn therefrom in plaintiff’s favor. [Wilson v. St. Joseph, supra.] The petition is not subject to such an objection unless it would be fatally defective after verdict. [Porter v. Railroad, supra; Wilkinson v. Misner, 158 Mo. App. 551, 555, 138 S. W. 931.] The prime object of a petition or statement is to inform the defendant of the nature of plaintiff’s claim that he may prepare to meet it and that a judgment thereon will be a bar to any further suit on the same claim. The specific objection now made is that this statement does not show that the “board and nursing” — 78 — charged for was the board and nursing of the deceased. We think, however, that this is the fair inference from the fact of claimant charging her estate therefor. As one person does not usually pay for the board of another and such would require a special contract, the natural inference is that a bill for board and nursing against a person is for the board and nursing of such person. Besides this, the defendant filed an answer and counterclaim in the probate court and the case was tried there without objection and possibly without discovery that the claim was not sufficient. This answer and counterclaim for services rendered by the deceased to plaintiff during the same period of time he was boarding and caring for her was an “express aider.” [McIntyre v. Insurance Company, 142 Mo. App. 256, 265, 126 S. W. 227.] Such trial in the probate court must necessarily have disclosed the full nature of plaintiff’s claim and defendant could not have been kept in ignorance of same or been in any way prejudiced thereby. As stated in Christianson v. McDermott’s Estate, 123 Mo. App. l. c. 455, 100 S. W. 63: “It sufficiently appears that plaintiff’s demand is for services rendered by plaintiff for the deceased for certain years, upon an implied obligation. The strict rules of pleading governing practice in the circuit courts are not required in cases originating in probate courts. All that is required is that the statement shall show the nature of the claim so that the administrator or executor may know what he has to defend against.” We have noted the many eases which diligence of defendant’s counsel has collected, but space forbids our citing and distinguishing samé; though we are not inclined to be as technical as courts have been at times. If we are to reverse cases for prejudicial error only, we must overrule this point. Objection is also made that the verification of the claim states that just credit has been allowed the es — 79 — tate of Cyntha E. Hays instead of Miller. The deceased was the sister of the claimant Hayes and her name of Miller was acquired by a previous marriage. It is evident that the writing of the name was a clerical error. "While the verification is jurisdictional, we do not think this error destroyed this otherwise good verification. It is hardly necessary to invoke the rule that the court would presume a proper verbal verification. [Waltemar v. Schnick’s Estate, 102 Mo. App. 133, 76 S. W. 1053; Undertaking Co. v. Jones, 134 Mo. App. 101, 106, 114 S. W. 1049.] We think there was ample evidence to sustain the verdict rendered in the circuit court for $260, the amount asked. The defendant says that the amount asked is so small for the amount of services claimed ■'as to discredit its good faith. This is explained, however, :by the fact that the estate of the deceased is ■,so small that a larger amount could not be paid. The evidence shows that deceased in 1900, then a widow and quite old, came to claimant, her brother, who was then living on a farm, and with tears asked for a home and place to live. She represented, and this is not disputed, that her sons, her only children, had refused her a home and virtually turned her out in the world with no place to go to. She was given a home and allowed to live with her brother, this claimant, until her death in 1913. During this time she was not only feeble with age, but a cripple and in bad health. According to plaintiff’s evidence she did but little work and only as she chose to do so. She was boarded and cared for by plaintiff with the aid of members of his family and hired help. Her sons, though having homes in the neighborhood, did not visit her or give her any assistance or help. Several witnesses testified that the deceased had said, particularly during her last illness, that she wanted and intended for the claimant to be well paid for taking care of and boarding her. One witness — 80 — testified that she told him she wanted claimant well paid for it if he kept her until she died and took care of her; that she wanted him well paid and to have what she had except the household goods and furniture which she wanted her children to have; that she wanted claimant paid first. Another witness testified that deceased said that claimant had been kinder to her than her own family and that she wanted him paid for it; that she said this in April or May, 1913, and spoke the same way when witness was boarding at claimant’s house some nine years previous. Another witness testified that the deceased said that she wanted claimant paid the first thing, if she should happen to drop off, for taking care of her and that she wanted her doctor bill and funeral expenses paid and the balance divided up equally among her children. The evidence shows that the estate of the deceased had been considerably larger at one time. Other witnesses testified that deceased told them of having told the claimant that she would pay him for caring for her. This evidence certainly made a case for the jury. In Hyde v. Honiter, 175 Mo. App. 583, 158 S. W. 83, the court, after saying: “The general tenor of this testimony was to the effect that deceased expected' the plaintiff to be paid out of the property of deceased after the latter’s death, ’ ’ and ‘ ‘ There was testimony, not of one witness, but of several, to the effect that the deceased had upon numerous occasions declared that she intended or expected plaintiff to be well paid for what she did; and, on the other hand, there was testimony that plaintiff rendered the services in expectation of being paid for them. This is substantial evidence^ to take the question to the jury, the latter being the sole judges of its weight and of the credibility of the witnesses,” further said: “The evidence shows that the deceased expected plaintiff to be paid for her services; the statements in question carry with them the idea of compensation for services rendered, not of — 81 — bestowing- a mere bounty. On the other hand, there was evidence that plaintiff expected compensation for what she did. This being- the case, it cannot matter that the services were not to be paid for until after the death of the deceased, and out of the property left by her, if such was the case. The real question is whether it was the mutual understanding and intention of the parties that plaintiff’s services were to be paid for. [See Christianson v. McDermott Estate, 123 Mo. App. 448, 100 S. W. 63; Hartley v. Estate of Hartley, supra.] And we think the evidence touching this question was such as to make it a matter for the consideration of the jury.” To the same effect is Bowman v. Shelton, 175 Mo. App. 696, 158 S. W. 404. It is not conclusive from the evidence that deceased was a member of the claimant’s family so as to raise the presumption that his services in earing for her were gratuitous. [Birch v. Birch, 112 Mo. App. 157, 86 S. W. 1106.] In case the jury so found from the evidence, it was then required by the instructions given, in order to find for plaintiff, to find that there was a contract, express or implied, to pay for the services, that is, a meeting of the minds of the parties that such services were to be charged for by the one and paid for by the other. The cases of Bowman v. Shelton, and Hyde v. Honiter, supra, are conclusive against defendant’s contention that all services sued for which were rendered more than five years prior to the filing of this claim are barred by limitation. The evidence here shows that the payment for the services was to be deferred and all of same paid for at the end of the service or after the death of the deceased. This fact makes it a running- account and if the last item is not barred by limitation none of the account is barfed. The last assignment of error relates to improper remarks by plaintiff’s attorney in his argument to the — 82 — jury. The sons of the deceased were the administrators of her estate. Said attorney used strong language in commenting on the action of these sons in refusing to take care of their mother and in not even visiting her, though living in the same neighborhood, and then said: “Aren’t these three Miller boys the heirs, and don’t they get this estate, and doesn’t it go to them? Aren’t they here, fighting this case, because they know that if they can beat this old man out of his claim that they will get the money. ” It is shown, however, that these remarks were made in retaliation for defendant’s counsel having argued to the jury that the administrators were fighting the case as a matter of duty and had no personal interest in the case. Yost v. Railroad, 245 Mo. 219, 251, 149 S. W. 577.] This is not a ease where the jury could have been influenced by passion or prejudice to give an excessive verdict. We are not inclined to hold that the jury were swayed from correctly deciding the issues of fact. The result is that the judgment will be affirmed. Robertson, P. J., and Farrington, J., concur.