Bowman v. Shelton

REYNOLDS, P. J. Mrs. Eliza Noland died tbe 30th of January, 1910', on a farm at Bainbridge, Cape Girardeau county, on wbicb farm sbe bad lived and reared ber , family. Sbe was about eighty-four or eighty-five years of age at tbe time of ber death and bad been a widow for a number of years. Tbe farm on which sbe lived and died was- ber own property. By ber last will sbe devised tbe farm to an only daughter, Mrs. Ellen Bowman, who survived ber. Her only other heir at law was a son, Henry Bowman, bus-band of tbe plaintiff here, to whom sbe left five dollars. Henry Bowman bad married tbe plaintiff some twenty-five years prior to tbe death of bis mother. Prior to tbe marriage be bad lived on tbe farm mentioned with bis mother and after bis marriage be and bis wife continued to make their home there, tbe only other member of tbe family being the daughter of Mrs. Bowman by a former marriage. Along in 1900 or 1903, tbe St. Louis & San Francisco Railway Company was constructed either through or near tbe farm, on which farm, in addition to a small dwelling, were a storehouse and wharf on the Mississippi river. Bainbridge appears to have been a station on tbe railroad and Henry Bowman, tbe husband of plaintiff, kept a small grocery there and managed tbe wharf. He was also post master at tbe village of Bainbridge. Along in 1902 or 1903, Mrs. Bowman commenced keeping board — 703 — ers. Prior to 1903. Mrs. Noland, while living in the house with the Bowmans, had provided for herself, living in her own room. When Mrs. Bowman commenced keeping boarders, either in 1902 or 1903, her mother-in-law appears to have discontinued providing her own meals, and while she still continued to occupy one room in the house, she took her meals with the family. As she advanced in years, and became feeble, the plaintiff took care of her, nursing' and attending on her, the necessity for attendance increasing with the years. The question presented in this case arises over the right of appellant here to charge for board and these services. The action was commenced October 24, 1910. The petition in the cause, in one count, avers that Oliver Bowman, who at the time of the institution of this action had charge of the estate of Mrs. Nellie Bowman, as executor under her will, was indebted to plaintiff in the sum of $1425 on account of board and washing furnished Mrs. Noland from March 8,1902, to January 30, 1910, at fifteen dollars per month, and for services of plaintiff as a nurse in taking care of Mrs. Noland during her illness from December 23, 1907, to the 23rd of February, 1908, at the rate of $2.50' a day, amounting to $155, and for services as a nurse in her last illness from November 15, 1909, to January 30, 1910, in the sum of $380', being at the rate of five dollars a day, and for services rendered Mrs. Noland by plaintiff, “in watching after and taking care of her” from November 15, 1906, to November 15, 1909, at the rate of five dollars a month, a total of $180, the total amount claimed being $2140'. The defendant appearing moved the court to require plaintiff to elect upon which cause of action stated in her petition plaintiff would proceed. This motion was overruled, defendant excepting and filing — 704 — an answer, which, after a general denial, pleads the Statute of Limitations thus: “Answering further and as a defense to said petition defendant states that the amount alleged to be due plaintiff for board and washing prior to the 29th day of November, 1905', if any, or upon any cause of action therein stated accrued to plaintiff more than five years next before the filing of her petition, ’ ’ and it is averred that whatever cause of action is stated in the petition, that accrued prior to the 29th of November, 1905', is barred by the Statute of Limitations. The cause was tried before the court and a jury and at the conclusion of the testimony for plaintiff, defendant demurred to the evidence. This-was overruled, defendant excepting. Whereupon defendant offered his evidence. - At the conclusion of all the testimony in the cause defendant again renewing his demurrer to the evidence, the demurrer was overruled, defendant excepting. At the instance of plaintiff the court gave four instructions, all of which were excepted to by defendant. At the instance of the defendant the court gave six instructions and refused two. One of the instructions asked by defendant and refused was that if the jury found the issues for plaintiff, in arriving at the amount of their finding they should not take into consideration any services rendered or meals furnished prior to the 29th of November, 1905'; in the other refused instruction the court was asked to tell the jury that they should not take into consideration the charge for any services rendered or meals furnished deceased prior to September, 1907. The jury returned a general verdict in favor of plaintiff, assessing hér damages at the sum of $700. Piling a motion for new trial, as also one in arrest, and excepting to the action of the court in overruling these motions, the executor duly perfected his appeal — 705 — to this court. Pending the appeal the executor resigned and N. E. Shelton, public administrator of Cape Girardeau county, took charge of the estate. Entering his appearance here and filing a motion to that effect, he has been duly substituted as appellant. This presents a case of which we have recently had quite a number of like character, of a dispute arising On the death of a member of a family over the question as to whether the services rendered her while the parties were all of one family were gratuitously furnished in consideration of and as growing out of the family relation, or whether they were furnished under a contract, express or implied, or under such circumstances as created an obligation on the part of the estate of the deceased to pay for them. The determination of this class of cases is so entirely a matter for the jury and for the trial court that if no substantial error has been committed in the reception or rejection of testimony, or in the matter of the giving or refusal of instructions, and there is substantial evidence to support the verdict, the appellate courts cannot and wrill not interfere, the verdict having been approved by the trial court. That court alone is authorized in an. action at law, as invariably held, to pass on the weight of the testimony. It is very earnestly insisted by counsel for appellant that two or more causes of action are improperly joined in one count in the petition and as noted, a motion was filed to compel plaintiff to elect as to which cause of action she would .rely upon. That motion was overruled, whereupon defendant answered and pleaded, after a general denial, the five-year Statute of Limitations. An examination of this petition does not sustain this charge that there are several causes of actions counted upon. As the facts are pleaded in the petition, the account is a .running account, made up of various items, accruing at different dates but constituting one — 706 — cause of action, properly stated in the one count foi board and services; a claim in gross for sundry services rendered and hoard furnished at divers times during a period of' years in the lifetime of the deceased. [McAdam v. Scudder, 127 Mo. 345, l. c. 354, 30 S. W. 168.] For very many years there has been published as an approved form, a petition in an action for goods sold and delivered, work done, materials provided and money lent, these all in one count. [See Form 88, of Forms, R. S. 1909.] While the publication of -this form does not give it express legal sanction, its use for so many years in our various revisions is such a recognition of it as entitled it to consideration. Aside from this, defendant lost the benefit of his motion to elect by pleading over. This has been so often decided by our Supreme Court and by the appellate courts of the State that it may be said to be a closed question, one no longer open to debate. We refer, in passing, however, to the decisions of the Kansas City Court of Appeals in Finnell v. Metropolitan Street Ry. Co., 159 Mo. App. 522, l. c. 525, 141 S. W. 451, and Kastor & Sons Advertising Co. v. Elders, 170 Mo. App. 490, 156 S. W. 737, as containing very full collections of the decisions on this point. This disposes of the first assignment of error made by the learned counsel for appellant. The second and third assignments are thát the court erred in overruling the demurrers to the evidence at the close of plaintiff’s case and at the close of the whole case. We cannot agree to these assignments as being well made. There is substantial evidence in the case that the services were rendered at the request of the decedent by the complainant; that she was conducting the boarding house herself, independent of her husband; that her mother-in-law boarded with her,' with the expectation on both sides that the board was — 707 — to be paid for; that there was a recognition of an obligation to pay and expression of an intention to pay for them by Mrs. Noland. It is true that the testimony is not very strong and that there is a good deal of contradiction in the testimony over the facts. That for the time covered by these transactions the parties, that is Mrs. Noland, her son Bowman and the wife of the latter, lived together as one family, is fairly clear. When parties occupy that position the burthen is upon the party claiming pay for board or services to show that the services and board were not rendered and furnished gratuitously. The family relationship presumptively disposes of any right to claim compensation. That, however, is a presumption which may be overcome by testimony, and the weight to be given that testimony is for the jury in the first instance and the trial judge in confirmation of it. We cannot say, on reading all of the testimony in the case that there was no substantial evidence overcoming the presumption arising from the family relationship. That being so, we are concluded by the verdict of the jury and the finding of the trial court. It may be, as some of the evidence tends to show, that the manner in which Mrs. Noland expected to pay for the services was “by .remembering Mrs. Bowman in her will.” Referring to'.like evidence in a case before it, the Kansas City Court of Appeals in Christianson v. McDermott’s Estate, 123 Mo. App. 448, 100 S. W. 63, has said that while there is some evidence tending to show that the claimant in that case expected to be compensated by being remembered in the will, the evidence shows further that she did expect remuneration in some form and that the deceased agreed that she should be remunerated. Says the court (1. c. 451): “We are at loss to know why, if a remuneration was expected and .promised for the services, plaintiff would not be entitled to it although — 708 — she did not get it in the form so expected'. It seems to ns the only question in the matter is, was plaintiff entitled to pay for her services.” That is practically the case here to some extent. There was evidence that what Mrs. Noland meant when she said that Mrs. Bowman should not lose by her care and attention of her, was with reference to Mrs. Noland’s final disposition of her estate, but there was in these very expressions and the connection in which they were used, . sufficient to warrant the jury to find that the services were rendered on the expectation of both parties that they were to be paid for. That, as said by the Kansas City Court of Appeals in the Christianson case, supra, will be sufficient on which to base a finding. We agree to this view, and therefore cannot sustain either of these assignments of error in overruling the demurrers. The fourth error assigned is to the giving of the third and fourth instructions at the request of plaintiff. The third instruction, in substance, told the jury that it was not necessary to a recovery by plaintiff that she establish a formal verbal or written contract, but if the jury found “from a consideration of all the evidence that services were rendered or board furnished Avith the expectation at the time on the part of plaintiff that she wTas to receive pay therefor and the expectation on the part of Eliza Noland that she was to make compensation therefor, such mutual expectation constituted a sufficient contract within the legal meaning of the term.” The fourth instruction told the jury that where services are rendered or received “a contract or obligation to pay will be presumed, except services rendered by members of one family to each' other, in which case the presumption is that they were intended to be gratuitous, ’ ’ and although the jury might believe that the plaintiff and the deceased were members of — 709 — the same family, if they further believed that the plaintiff rendered services claimed for and boarded the deceased, and the jury found that the services were valuable and knowingly accepted and received by the deceased, and that the facts and circumstances under which they were rendered were such as to show a reasonable and proper expectation that plaintiff would be compensated therefor, or that both she and the deceased intended that compensation was to be made for the services although no express understanding to that effect was entered into, the jury might find for plaintiff and allow her a just and reasonable compensation for such services as are shown to have been rendered, and that if the jury found from the evidence that the parties had an understanding that any or all of the services should be charged for by plaintiff, their finding should he for plaintiff for all services covered by such understanding, and in either case, if the finding of the jury should he for plaintiff they will allow her a proper and reasonable compensation for the services shown to have been so rendered, not to exceed the sum of $1425 for hoard and not to exceed the sum of $535 for nursing. It will he seen that this instruction eliminates the item of $180 claimed for services in watching after and taking care of the deceased from November 15, 1906, to November 15, 1909, that item apparently having been abandoned. We are unable to discover any error whatever to the prejudice of the defendant in these instructions. They state the law applicable to this case as has been determined in many decisions of our courts. They were in line with those given at the instance of the defendant, which told the jury in most unequivocal and even emphatic terms that the burden was on plaintiff to overcome the presumption that they were gratuitous, that presumption arising from the family relationship, and that plaintiff, before she can recover — 710 — “must prove by a preponderance of the evidence that there was an intention on the part of the plaintiff to charge for the services rendered and the meals furnished, if any, at the time, and an intention on the part of the deceased, Mrs. Noland, to pay for the same, and unless you do so find your verdict must be for the defendant. ’ ’ The fifth assignment of error is to the refusal of defendant’s instructions numbered 7 and 8, invoking the Statute of Limitations as against items prior to 1905 and 1907. The learned counsel for appellant rely in support of their contention for the bar of the statute upon the decisions of our court in Loeffel v. Hoss, 11 Mo. App. 133, l. c. 135 ; Chapman v. Hogg, 135 Mo. App. 654, l. c. 660-661, 116 S. W. 492, and Sidway v. Missouri Land & Live Stock Co., 187 Mo. 649, l. c. 668, 86 S. W. 150. We do not think that the facts on which 'the bar' of the statute was interposed in the Loeffel and Chapman cases, are present in the case before us. In each of those cases there was an entire cessation of the relation between the parties and after the lapse- of a considerable time and. in an entirely disconnected transaction charges were again made. We held in both those cases that the statute did interpose as a bar and that the accounts were not connected accounts. That is not the case here. As we understand the decision of our Supreme Court in Sidway v. Land & Live Stock Co., supra, it is not only not in favor of defendant but is against his position. Quotation is there made from Chadwick v. Chadwick, 115 Mo. 581, l. c. 586, 22 S. W. 479, of whar Judge Black, speaking for the court has there said, namely: “It seems to be quite generally held that if the items are all on the one side, then the. account is not mutual in the sense that the last item will draw-after it the items previously charged so as to save the bar of the Statute of Limitations as to the whole — 711 — account; but the rule has been otherwise settled in this State. Speaking- of our decisions upon this point, it was said: ‘ They are to the effect that when the account sued on is a running account, and it is fairly inferable from the conduct of the parties while the account was accruing, that the whole was to be regarded as one,' as in case of a merchant’s account against a customer, none of the items are barred by the statute unless all are.’ [Ring v. Jamison, 66 Mo. 424, l. c. 428.]” Following this quotation it is held by our Supreme Court in the Sidway case, supra, l. c. 660, that they are accepted as announcements of the true state of the law in this State. Applying the rule above announced to the facts here, we hold that this, as pleaded, is a running account, and that the Statute of Limitations does not apply to any items in it unless to all, and that would include the last item, which last item is undoubtedly within the statutory period and is not subject to the bar of the statute. The remaining- assignments of .error are to the overruling of the motion for new trial and in arrest. Holding as we do on the above propositions, these motions were properly overruled. The learned counsel for appellant, in a very fervid argument, both printed and oral, inveigh against the danger of allowance of accounts of this kind, brought up after the death of the party whose estate is to be charged. That may be. It may be that it is dangerous, in a way, to allow accounts of this nature and under like circumstances to be recoverable, especially when, as here, and in all like cases which have come before us, no memorandum of the items, no account in fact, was made or kept of them during the life of the alleged debtor; no formal account ever made out, and where the proof of the fact of its acknowledg- ■ ment and even of its existence rests in parol; that parol — 712 — testimony generally, certainly often, coming from interested witnesses, not so interested to be disqualified, witness held qualified by law. Inasmuch as our lawmaking power has not seen fit to impose upon these transactions any of the restrictions imposed in other cases, as for instance by the Statute of Frauds in specified cases, the trial courts must admit this parol evidence and the appellate courts are powerless to overturn verdicts, those verdicts affirmed by the trial court, on the weight of evidence or on any supposed impolicy' of allowing claims of this kind to be presented and prosecuted. The power of restraint as to maintenance and establishment of like contracts, proof of which rests in parol, is with the legislative, not with the judicial, department of the government. The policy of the State is found in the laws of the State, and these are made, not by the courts, hut by the Legislature. Under the law as it is, where there is any substantial evidence sustaining the claim and that evidence has been passed upon by the jury and its verdict approved by the trial court, and judgment has followed, we are bound to affirm, absent any error in the giving or refusal of instructions or in the admission or exclusion of testimony. We find no such errors here. The judgment of the circuit court must he and is affirmed. Nortohi and Allen, JJ., concur.