Juckes v. Rogers

1952 OK 190, 246 P.2d 335, 206 Okla. 663, 1952 Okla. LEXIS 672

• Court: Supreme Court of Oklahoma
• Decided: April 29, 1952
• Docket: 34555
• Status: Published

Opinions

PER CURIAM.

Plaintiff, Rogers, presented a claim to defendant, Juckes, administratrix of the estate of Charlie Rogers, deceased, for services performed by plaintiff for decedent from November 11, 1944, to December 16, 1948, the date of his death. The claim was rejected and plaintiff instituted this action to establish it, upon a quantum meruit basis, pursuant to 58 O. S. 1941 §339. From a verdict and judgment for plaintiff, defendant appeals.

Plaintiff’s husband was a brother of decedent, and for a great number of years she and her husband lived together with deceased and another brother on the farm of deceased. Deceased suffered total blindness early in life, but, except for total loss of his sight, was a man of good health. On November 11, 1944, plaintiff’s husband died. Thereafter, and until death of decedent on December 16, 1948, plaintiff continued to live on the farm of deceased, performing the work which.is the subject of the present controversy.

The appeal is based on three contentions: (1) that there is insufficient evidence to support the verdict; (2) that there was error, in admission of testimony of plaintiff that she had not been paid anything for such services by deceased; and, (3) misconduct of counsel in final argument.

There is little conflict in the evidence as to the nature and performance of the work by plaintiff. The testimony shows that plaintiff performed the many usual duties of a farm woman, keeping the home in order, cooking, helping with the stock and in the field, and performed other duties in her work naturally attendant to the care and comfort of an active blind man. There is also evidence in the record to support a finding that decedent requested plaintiff to perform such services. Typical of such evidence is the testimony of a neighbor as follows:

“Well, when Mr. Rogers died, why he (Mr. Charlie Rogers) said, ‘Our home is broke up,’ and of course that is all Charlie said to me at that time, and Mrs. Rogers went home with, her daughter who lives in Texas and was gone a few days, and when she returned in a few days I called on Mrs. Rogers, and the blind boy (Charlie Rogers) said, ‘Jessie I have asked Audrey to stay on with us’ and he said, ‘We are very happy about it.’ ”

The issue decisive of the appeal is whether or not there exists in the record any competent evidence of such performance at decedent’s request under circumstances from which a promise by decedent and expectation by plaintiff of payment for such services can be inferred. Over thirty witnesses were called and gave testimony tending to create or rebut such an inference. Direct evidence on this particular issue is limited by death of decedent and the disqualification of plaintiff to testify concerning transactions with decedent. We are of the opinion that the record .as a whole is sufficient to support the verdict of the jury for plaintiff on this issue. In Colpitt v. Smith, 180 Okla. 627, 71 P. 2d 711, we said:

“It is a well settled rule that where-there is any competent evidence reasonably tending to sustain a verdict, though the evidence be conflicting, and the cause is submitted to the jury upon instructions fairly stating the applicable law, the Supreme Court will not review the evidence, for the purpose of determining the weight thereof, and substitute its judgment for the judgment rendered on the verdict, and the verdict will not be disturbed on appeal.”

We hold that there exists in the record competent evidence reasonably tending to sustain the verdict, and the above authority disposes of defendant’s first contention on this appeal.

Defendant’s second contention is that the trial court committed error in admitting testimony of plaintiff in violation of 12 O.S. 1941 §384, relating to testimony of transactions with a decedent. Plaintiff, .over objection of defendant, was sworn and asked the, single question as to whether or not she had been paid anything .for her services rendered deceased. The trial court permitted plaintiff to answer that she had not. Such a contention was decided adverse to defendant in Chandler v. Chapman, 189 Okla. 108, 114 P. 2d 471, involving this precise issue, where we set out the applicable rule as follows:

“In connection with the last contention defendant complains that the trial court erred in permitting the plaintiff to testify that he had never been paid for the groceries or services furnished to decedent. The furnishing thereof had been established by other witnesses, and the trial court permitted plaintiff to so testify. We do not think the answer of plaintiff, which was in the negative, was violative of the rule announced in Pancoast v. Eldridge, 157 Okla. 195, 11 P. 2d 918. It did not tend to establish an implied contract between plaintiff and decedent, or relate to a transaction had by plaintiff with him. It was the very opposite of a transaction with the decedent. Ball v. Fleshman, 183 Okla. 634, 83 P. 2d 870.”

Defendant also complains of misconduct of counsel in final argument in indicating to the jury that evidence as to. certain mortgage transactions between plaintiff and decedent could not be shown because “the law has sealed her lips.”

The record clearly shows that the court clarified the remark to the jury following defendant’s objection and the matter was of little importance in the proof. It does not appear that substantial prejudice resulted from the remark nor that the jury was influenced thereby to the material detriment of defendant. Safe-Way Cab Service Co. of Oklahoma City v. Gadberry, 180 Okla. 51, 67 P. 2d 434; Clanton v. Mundell, 174 Okla. 428, 51 P. 2d 760; Safeway Stores v. Whitehead, 190 Okla. 464, 125 P. 2d 194.

The judgment of the trial court is affirmed.

This court acknowledges the services of Attorneys Arthur Ellsworth, Ted Elliott, and Edgar Fenton, who as Special Masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by the Court.

WELCH, GIBSON, DAVISON, JOHNSON, O’NEAL, and BINGAMAN, JJ., concur. HALLEY, V.C.J., and CORN, J., dissent.