Opinion
No. 6932.
February 7, 1951.
APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY, RANDOLPH H. WEBER, J.
M. W. Henson, Rex A. Henson, Poplar Bluff, for appellant.
Byron Kearby, W. H. Meredith, Poplar Bluff, for respondent.
This is an action in quantum meruit for services rendered to the deceased, Lillie Purrine, while she was ill. It was tried to a jury, which rendered a verdict for plaintiff in the sum of $5,886.00. From a judgment thereon, defendant has appealed.
At the close of plaintiff's evidence and at the close of all the evidence, defendant filed a motion for a directed verdict which was overruled. Therefore, the first question to be decided is whether the evidence supports the verdict and judgment.
In passing upon this question, it is the duty of this court to consider all the evidence in the case, to take all of plaintiff's evidence as true, to give plaintiff the benefit of all reasonable inferences that may be drawn therefrom, to give plaintiff the benefit of all helpful evidence offered on the part of defendant, as well as all reasonable supporting inferences, and to disregard all of defendant's testimony inconsistent with that of the plaintiff. Silvey v. Herndon, Mo.App., 234 S.W.2d 335; Neely v. Freeze, 240 Mo.App. 1001, 225 S.W.2d 144.
We will therefore state the evidence in accordance with this rule.
The deceased, who lived at Poplar Bluff, and plaintiff were sisters. For two or three years prior to the 23rd of July, 1946, plaintiff had a good position in St. Louis, steady work, forty hours per week, with two weeks paid vacation each year. For several months prior to that time, decedent had been suffering from cancer of the stomach and bowels, she had had several operations and was going to the hospital in St. Louis again for the purpose of undergoing another. This operation caused decedent's bowel action to be through her side instead of normally. She was 65 years of age, weighed approximately 200 pounds and because of some affliction in her lower extremities, was unable to walk around without great difficulty, generally, as assistance in locomotion, using crutches or a wheel chair. She needed someone to stay with her all the time, and she made a proposition to the plaintiff, who was a widow, that if she would quit her job in St. Louis, come to Poplar Bluff and take care of her, she would give her $10.00 per week, her board, and at her death would give her a certain piece of real estate in Poplar Bluff, Missouri worth approximately $4500.00 and also her furniture, which was worth between $3,000.00 and $4,000.00.
Pursuant to this agreement, plaintiff quit her job, came to Poplar Bluff and later went with deceased to the hospital in St. Louis, took care of the decedent for several weeks while she remained there, and then came to Poplar Bluff where she stayed with her until the 31st day of August, 1948, or approximately a total of 110 weeks. During all this time, the deceased was practically helpless. The plaintiff cooked her meals, and served them to her in bed, did the house work, washed and ironed the clothing, changed the dressing on the incision in her side due to the operation, bathed her person, in fact, did everything she could to make her comfortable. She was on duty 24 hours each day. Because of the operation, decedent had no control over her bowel action and at least three or four times each day, the plaintiff would have to remove the bandages and packing, wash her body where the incision was made, clean her clothing and bedding and keep her in a sanitary condition generally. The stench from the disease and the bowel action was very offensive, permeated the whole house, was almost unbearable and neighbors testified when they came in to visit the invalid, they stayed only a short time because of the odor, which made them sick. At times it was necessary to use a suction machine to draw the feces from her body. It was necessary that someone be in attendance upon her at all times.
On the 31st day of August, 1948, after the plaintiff had rendered services to her sister for approximately 110 weeks and while then engaged in doing the washing and ironing, the decedent informed her that her services were no longer required. She rendered no further services because of the attitude of her sick sister and her aunt, Mattie Davis.
A Mrs. Bessie Wagner, who was a practical nurse, and who attended deceased after plaintiff left and until her death, in testifying as to why plaintiff didn't more frequently come to see Mrs. Purrine, stated:
"Q. Do you know why Eliza didn't come to see her? A. Yes, sir.
"Q. Tell the jury why she didn't come. A. Because they had one sister, I think it is Mattie Davis, and she will let nobody come and see her. She whipped her and run her away and practically everybody that would come there, she would run them off. And she also hit me on the arm and wanted to fight me, and I wouldn't fight her. This woman was a corpse you might say and I called for one of her brothers to come down and to go down and see Mr. Harwell to get a piece of paper fixed up to keep Mattie out of the house."
In the meantime, the decedent had revoked a will in which she had left the house and furniture to plaintiff and executed a new one, in which $2,000.00 or $3,000.00 were bequeathed to Mattie Davis. Mrs. Purrine died June 7, 1949. Two days before she died she expressed affection for the plaintiff, gratitude for her kindness and said she wanted her paid for her services. She then stated that she had agreed to pay plaintiff $10.00 per week and give her the house and furniture. The evidence on behalf of the plaintiff further showed that the reasonable value of her services was between $10.00 and $15.00 per day. She had been paid $714.00. The jury allowed her compensation at the rate of $60.00 per week for 110 weeks, after deducting the amount that she had already been paid.
This suit was filed against Lillie Purrine personally, on the 3rd day of September, 1948. Her death was suggested on the 22nd day of August, 1949 and the cause revived in the name of her executor, A. H. Harwell. It was tried on a first amended petition which was filed October 3, 1949, and was tried on November 2, 1949.
Plaintiff abandoned her contract with deceased and sought to recover for her services on quantum meruit, which she had a right to do. Joseph v. Joseph, Mo.App., 164 S.W.2d 145; In re Stein's Estate, Mo.App., 177 S.W.2d 678.
Appellant first contends that the judgment is excessive in that it exceeds the amount shown by the testimony to have been agreed upon between plaintiff and deceased. We are unable to agree with that contention. The evidence on the part of plaintiff showed that she was to receive $10.00 per week and that she worked 110 weeks, therefore, the salary would amount to $1,100.00. In addition, she was to receive a piece of property worth $4500 and furniture worth between $3,000 and $4,000 or a minimum total of $8,600.00. The judgment was for $5886.00, which was for $60.00 per week less the $714.00 that plaintiff had already been paid.
It is further contended that there was an account stated between plaintiff and deceased on September 2, 1948. In other words, that the plaintiff and deceased agreed that the total amount due plaintiff at that time was $386.00. The evidence does not so show. It does show that deceased offered plaintiff that sum if she would sign a complete release which she refused to do. There is some evidence also that plaintiff agree that was the amount due her in cash, but there was also due her, so she contended, the real estate and the furniture. She refused to sign the release and take the $386.00. To be an account stated, it would have been necessary for plaintiff and deceased to have agreed that the total balance due plaintiff was $386.00 and for deceased to have promised to pay that exact sum to her. Brookside Garage v. Witter, Mo.App., 125 S.W.2d 947; Conkling v. Henry Quellmalz Lumber Mfg. Co., Mo.App., 20 S.W.2d 564.
Defendant's third contention is that plaintiff was premature in filing her petition inasmuch as she asked that a judgment be declared a lien on the real estate, but this was abandoned when the first amended petition was filed and received no further consideration by anyone in the trial.
Defendant next contends that parol testimony as to the contents of the will that was revoked was error and cites in support of that the case of Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817. That case is not in point. It was an action for specific performance of an alleged oral contract to make a will involving real estate. In the case at bar, the evidence of the first will was brought out to show plaintiff's theory of the contract with deceased. It showed that she had made a will leaving the house and furniture to plaintiff in accordance with the provisions of the contract plaintiff had made with deceased, that later she procured this will, had a witness read it to her because she could not read and then revoked it by tearing it in pieces and having the pieces burned. The evidence then showed that she had executed a second will in which she had made other dispositions of her property. This evidence all tended to show that the deceased did not intend to live up to her contract with plaintiff. Plaintiff thereupon abandoned the contract and sued for the value of her services in quantum meruit. The testimony as to the wills was clearly admissible, in fact, most of it went in without objection and the provisions of the last one were first brought out by appellant's counsel on cross examination of plaintiff's witness, Mrs. Magruder, who was a sister to both plaintiff and deceased. It was clearly admissible to show that Mattie Davis was to receive $2,000.00 or $3,000.00 under the second will to show her interest in the case. Furthermore, it went in without objection and was testified to by defendant Harwell, the executor of the estate.
Appellant complains of the alleged misconduct of one of the attorneys for plaintiff, in his conduct of the trial and in his closing argument. The argument of counsel is not set forth in the record and we do not know what he said there. We have carefully read the transcript of the trial and find no conduct that would justify appellant's contention of "continuous and persistent, wicked and venomous conduct and demeanor throughout the trial * * *."
The evidence on behalf of plaintiff was sufficient to support the verdict and judgment and should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.