Johnson v. Ranes

680 P.2d 688, 67 Or. App. 667
CourtCourt of Appeals of Oregon
DecidedApril 11, 1984
DocketA8102-00689; CA A26849
StatusPublished
Cited by2 cases

This text of 680 P.2d 688 (Johnson v. Ranes) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Ranes, 680 P.2d 688, 67 Or. App. 667 (Or. Ct. App. 1984).

Opinion

NEWMAN, J.

Defendant, decedent’s personal representative, appeals from a judgment for the value of services to decedent. Plaintiff alleged that, at decedent’s special request, plaintiff cared for her from 1974 until her death and that (1) the reasonable value of plaintiffs unpaid services is $25,000 and (2) the agreed value of those services is $25,000. In her answer, defendant denied plaintiffs claims and alleged affirmatively that decedent “made periodic payments to plaintiff and bequeathed to plaintiff $5,000 and an exercycle, all in full payment for plaintiffs services.” Defendant also alleged that plaintiff was a volunteer. The jury returned a general verdict in favor of plaintiff for $20,000. We affirm.

In 1972, plaintiff was doing volunteer work for the elderly through the Multnomah County Family Counseling Service and met decedent. Plaintiff was not related to decedent by blood or marriage and was not a member of her family or household. Decedent was ill with multiple sclerosis. Every two weeks for two years plaintiff took her to buy groceries. Plaintiff testified that in June, 1974, decedent took her to the bank, showed her a certificate of deposit for $25,000 and told her:

“If you will take care of me for the rest of my days and see that I am properly buried, I will leave this to you.”

Plaintiff testified that for the next six years she did most of decedent’s shopping, yardwork and cleaning and used her own car to take decedent to most of her frequent medical appointments. Plaintiff testified that she cared for decedent after several hospitalizations every day for 12 hours a day. As decedent improved, plaintiff reduced the time spent with her to three days a week. She testified that for 15 months, until decedent’s death, she fed her through a tube three times a day.

Decedent died in August, 1980. She left her estate of $240,000 principally to charity. Her will, dated April 28,1980, also provides:

“I give, devise and bequeath the sum of $5,000.00 cash and my exercycle machine to my friend, Naomi Johnson, provided she survives me. My friend, Naomi Johnson, has cared for me. While I have paid her at various times for such care that she has provided me, I hereby make the bequest above described to her in appreciation of her friendship.”

[670]*670Plaintiff filed a claim for $25,000 against decedent’s estate, stating:

“I cared for decedent since 1974. Decedent promised to sign over to me her First National Bank $25,000.00 Certificate if I would promise to care for her the rest of her life and if I would promise to see that she was buried in accordance with her instructions. I did promise to and I did care for her for the remainder of her life. I did also promise to see that she was so buried. I was not paid for this except for occasional expenses. The $25,000.00 Certificate was not signed over to me. I also claim a certain diamond ring, a ruby ring and a watch with diamonds which were given to me by decedent and taken from me by the Personal Representative under the belief that these items were a part of the estate.”

Defendant allowed plaintiffs claim for the ruby ring but disallowed her claim for $25,000, the diamond ring and the watch. This action followed.

Defendant’s first two assignments of error are that the court denied her motions for “a directed verdict,” first at the close of plaintiffs case and then at the close of all the evidence. She did not move for a directed verdict separately as to each claim1 and does not assign as error any ruling on such a [671]*671motion. Her third assignment is to the same effect — that the court denied her request that it instruct the jury to return “a verdict for defendant and against the plaintiff.” Again, defendant did not request an instruction as to each of plaintiff s claims separately2 and does not assign as error any ruling on such a request.

Defendant relies on ORS 115.195:

“A claim that has been disallowed by the personal representative may not be allowed by any court except upon some [672]*672competent, satisfactory evidence other than the testimony of the claimant.”

The statute means that a claimant must establish a prima facie case with evidence other than her own testimony before the case can be submitted to the jury. Lawrence v. Ladd, 280 Or 181, 192, 570 P2d 638 (1977); LaTrace v. Estate of LaTrace, 55 Or App 1005, 640 P2d 703 (1982). The jury may then consider her testimony. Estate of McLain, 126 Or 456, 463, 270 P 534 (1928). As stated in Uhler v. Harbaugh, et al, 110 Or 609, 616, 224 P 89 (1924):

“It does not follow, where other evidence sufficient to justify a verdict is introduced, that the testimony of the plaintiff is valueless. ‘Evidence sufficent to justify a verdict’ is one thing, and that which may in effect produce a verdict is another. Having laid a foundation for his recovery by producing evidence upon the strength of which a jury may find a verdict in his favor, the claimant may then buttress and reinforce his case by his own evidence so as to render it more probable that a jury will so find.” (Emphasis in original.)

To establish a prima facie case for the reasonable value of her services plaintiff had to show: (1) that she provided decedent with valuable services; (2) that decedent requested the services or acquiesced in their receipt knowing that they were not gratuitous; (3) that there was no express contract to pay for the services; and (4) the reasonable value of the services. The first three elements have to be established by evidence apart from the testimony of plaintiff, but her testimony alone could prove the reasonable value of her services. Littlepage v. Security S & T Co., 137 Or 559, 560, 3 P2d 752 (1931); Franklin v. Northrup, 107 Or 537, 554, 215 P 494 (1923). Moreover, because payment is a defense, plaintiff did not need to establish nonpayment as part of her prima facie case. Wagner v. Savage as Adm’r, 195 Or 128, 140, 244 P2d 161 (1952); Littlepage v. Security S &T Co., supra, 137 Or at 560.

Plaintiff did establish a prima facie case for the reasonable value of her services. There was sufficient evidence, apart from plaintiffs testimony, for the jury to find that she provided valuable services to decedent and that defendant requested or acquiesced in the services and knew that they were not gratuitous. Four of decedent’s neighbors and plaintiff’s husband testified in detail that plaintiff [673]*673assisted decedent over a six-year period with shopping, cleaning, transportation, feeding and nursing care.

Although decedent’s will states that her bequest to plaintiff was made “in appreciation of our friendship,” it acknowledges that plaintiff had cared for decedent and that decedent had paid for that care “at various times.” Decedent’s lawyer testified that decedent had recognized her obligation to pay plaintiff but felt that she was doing so by giving her “a few dollars here and a few dollars there.” He testified that he had told plaintiff that decedent had signed a new will that contained a bequest for friendship but did not provide compensation for the care that plaintiff had given.

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Cite This Page — Counsel Stack

Bluebook (online)
680 P.2d 688, 67 Or. App. 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ranes-orctapp-1984.