Opinion
No. 21542.
June 4, 1951.
APPEAL FROM THE CIRCUIT COURT, CASS COUNTY, JAMES R. GARRISON, J.
Harvey Burrus, Rufus Burrus, Independence, Ray Shubert, Harrisonville, Charles v. Garnett, Kansas City, for appellant.
L.M. Couch, Jr., Harrisonville, Robert E. Coleberd and Francis G. Hale, Liberty, for respondent.
This is a suit for services alleged to have been rendered by the plaintiff to Mrs. Cunningham during her life. The case was tried without a jury and resulted in a judgment for plaintiff for $2,240, from which he appeals. This is the second appeal; our first opinion is found in 207 S.W.2d 814.
Plaintiff's sole assignment of error is that: "There is no evidence to support the finding and judgment that the value of plaintiff's services is only $2240, and the trial court, in rendering judgment for that amount, has wholly failed to follow the opinion of this court upon the former appeal." Plaintiff's argument proceeds on the theory and with the assumption that our opinion on the first appeal "fully adjudicated" and settled the fact that plaintiff had rendered services for Mrs. Cunningham for a period of 127 months next before her death, for which he was entitled to some compensation; and that the only question of fact to be tried on the second hearing was the reasonable value of his services during said period.
Our former opinion is not subject to such a narrow and restricted construction. There were a number of assignments of error on the first appeal, all of which were ruled against the defendant (appellant on that appeal) except the one raising the question "that there was no evidence [in the case] to show the reasonable value of the services rendered." [207 S.W.2d 818.] On that point we reviewed the testimony and held that there was no evidence tending to prove the reasonable value of such services, and that the trial court could not allow a substantial sum without such evidence. We affirmed that part of the judgment holding "that plaintiff is entitled to recover * * *; but that part of the judgment fixing the amount of the award to plaintiff should be reversed for the lack of proof to sustain it, and the cause remanded for trial of the issue as to the value of the services rendered by plaintiff and the amount which he is entitled to recover." (Italics supplied.) We do not believe that language or any other language in the opinion can be construed to mean that the number of months for which plaintiff is entitled to compensation has been "finally adjudicated."
On the second trial plaintiff offered the entire transcript of the first trial, and when a question was raised concerning the relevancy of certain parts of the transcript, plaintiff's attorney stated: "I don't care about the motion to dismiss and plea in abatement and the other orders, but the testimony of the witnesses is what I have particular reference to and the exhibits." Upon this statement being made, the transcript containing all the evidence of the first trial was introduced and the court stated in its judgment that "the transcript of the former trial" had been read and considered in arriving at the amount allowed plaintiff.
There is no merit in the contention that our former opinion "finally adjudicated" the question of the number of months plaintiff was entitled to compensation. We have considered the cases cited and find the facts and issues clearly distinguish them from the question at issue here. Such cases are: Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415, and McClure v. National Bank of Commerce, 263 Mo. 128, 172 S.W. 336.
This brings us to a consideration of the question whether there is substantial evidence to support the judgment for $2,240. In the former opinion we briefly reviewed the evidence concerning the issue whether plaintiff had rendered services to Mrs. Cunningham and whether she had intended and agreed to pay him something therefor, and held there was sufficient evidence of such services and that he should be paid a reasonable amount therefor; consequently, it will not be necessary to restate such evidence but rather to direct our attention to the time and extent of such services, and to other facts developed at the second trial.
At the first trial Mrs. Thorne testified that in 1935 she nursed Mrs. Cunningham "a few days or a week" when she had a bad cold, but said nothing about services by the plaintiff; that in December, 1939, she was employed by Mrs. Cunningham as a companion and remained with her until May, 1940; that during that period she went with Mrs. Cunningham to the bank "about four times" where Mrs. Cunningham talked with plaintiff; "sometimes she would stay about an hour and sometimes not that long"; that during the time she was employed by Mrs. Cunningham she would have the witness call plaintiff one to three times a week to come see her and he would do so; that she also called a Mr. Crawford and a Miss Parrott, who were employees of plaintiff's bank, and they came or gave the information desired; that Mrs. Cunningham agreed to pay her $20 per week; that about a year and a half after Mrs. Cunningham died the plaintiff as executor of the estate, paid her $200 for services not paid for by Mrs. Cunningham. This was about three and a half years after the services were rendered. When Mrs. Thorne left on May 7, 1940, her sister, Mrs. Estes, came and remained with Mrs. Cunningham until her death on June 22, 1942. Her testimony is detailed in our former opinion and need not be repeated other than to say it is of the same tenor as the evidence of Mrs. Thorne. Mrs. Cunningham agreed to pay her $10 per week, and about a year and a half after Mrs. Cunningham's death, plaintiff, as executor, paid Mrs. Estes $200 for services rendered but not paid for by Mrs. Cunningham.
Miss Parrott testified that she was a bookkeeper at plaintiff's bank from 1918 until about 1942; that Mrs. Cunningham had been a customer of the bank for many years; that plaintiff was a vice-president of the bank but not a full time officer; that she had seen Mrs. Cunningham come to the bank and talk with plaintiff; "* * * I think occasionally they talked in the cage there and sometimes in the private office," but she has no recollection of the frequency of such visits; that it was not unusual for customers of the bank to come and discuss business affairs with officers of the bank; that she prepared the income tax returns for Mrs. Cunningham beginning in about 1933 or 1934, and when asked from what source and person she got the information to make the returns, she stated: "I kept the record of her receipts and anything I didn't know I went to Mr. Boggess (plaintiff) and asked the source of the income." She stated that Mrs. Cunningham's gross income for the year 1934 was $1,222.36; 1935, $1,372.75; 1936, $2,221.50; 1937, $1,730.92; 1938, $1,850.42; 1939, $2,501; 1940, $2,982; and in 1941, $3,589.94. She was paid for these services by the executor after Mrs. Cunningham's death.
Mr. Wherrett testified that he was personal attorney for Mrs. Cunningham from about 1925 until her death; that from the beginning of his services until the spring of 1933 Mrs. Cunningham consulted a Mr. Norton about business matters; that "Mr. Norton left Liberty, I think, in the spring of 1933, and she had Mr. W. C. Crawford"; that he knew she had discussed business matters with Mr. Boggess (plaintiff) "sometime after the bank reopened in the summer of 1932. * * * Many times she told me she had been talking to him about certain matters." He prepared her will in which she first named Mr. Crawford as executor, and after Mr. Crawford left the bank in 1934 or 1935 he prepared a codicil naming Mr. Boggess as the executor. The evidence discloses that Mrs. Cunningham had lived at the boarding house of Mrs. Crews for about 18 years prior to her leaving in 1941, when Mrs. Crews sold her home. Mr. Wherrett testified that he and Mr. Boggess tried to find her a suitable place to spend her declining days and succeeded in doing so; the amount of time and effort to accomplish that purpose is not disclosed. Concerning Mrs. Cunningham's "mental attainments * * from 1932 until the time of her death," Mr. Wherrett stated: "I think she had quite a knowledge of what she wanted and of her income and the kind of a place she wanted to live in Liberty." This witness was attorney for the estate and identified the original inventory showing a total gross value of $36,619.13. This amount was invested as follows: $1,000 in U.S. government bonds; 56 shares of stock in the Clay County Building and Loan Association; 195 shares of common stock in General Motors; 40 shares of preferred stock in the same corporation; and 5 promissory notes secured by deeds of trust aggregating approximately $14,000. The evidence discloses that the dividends from the Building and Loan Association and from General Motors were sent direct to Mrs. Cunningham by draft, and that she owned the General Motors stock and a portion of the Building and Loan stock before Mr. Boggess rendered her any service. It is also in evidence that Mrs. Cunningham had an annuity policy with the Kansas City Life Insurance Company and an annuity with William Jewell College, both acquired without any advice or assistance from the plaintiff, and that monthly checks were sent direct to Mrs. Cunningham by the insurance company and by the college.
At the second trial the plaintiff, in addition to offering the transcript of the evidence at the first trial, offered expert testimony concerning the value of the services rendered by plaintiff. These witnesses were Frank R. Hull, for many years a banker in Excelsior Springs; Howard C. Christman, a real estate and loan agent, with offices in Liberty, and Charles Q. Lewis, Jr., engaged in the real estate, loan and fire insurance business. These witnesses testified that they had read the transcript of the testimony taken at the first trial and each had formed an opinion pertaining to the value of the services rendered by plaintiff to Mrs. Cunningham. Mr. Hull gave it as his opinion that the value of such services was from $50 to $75 per month; Mr. Christman's opinion was "around $60 or $65 per month"; Mr. Lewis's opinion was that the value of such services "would be a maximum of $75 a month."
Under our view of the case, it is unnecessary to consider the evidence offered by the defendant on the second trial.
Boiled down, plaintiff's argument is based on the premise that we should determine the reasonable value of his services within the limits of this expert testimony, multiply that amount by 127 months, and enter judgment accordingly. If this theory should be adopted, the court would be required to make an allowance of at least $50 a month, or $600 for the year 1934, when defendant's gross income for that year was only $1,222. Under all the evidence, we cannot countenance such an allowance.
Since we hold that our former opinion did not "finally adjudicate" the number of months for which plaintiff was entitled to compensation, we are unwilling to adopt plaintiff's theory in arriving at the value of his services. We hold that the question of time for which he is entitled to compensation is an issue, together with the reasonable value thereof. The evidence concerning the services rendered by plaintiff prior to December, 1939, is so indefinite, fragmentary and uncertain that the trial court could well have found that it was insufficient to make any allowance during that period. There is substantial evidence of services rendered by plaintiff beginning in December, 1939, until Mrs. Cunningham's death. This is a period of 31 months. Plaintiff's evidence is that the reasonable value of his services was from $50 to $75 a month. The trial court did not state the monthly allowance, but merely rendered a general judgment for $2,240. We think the evidence supports this allowance and we are unwilling to reduce or increase that amount.
The judgment is affirmed.
All concur.