Story v. Story

131 So. 2d 913
CourtLouisiana Court of Appeal
DecidedJune 30, 1961
Docket5239
StatusPublished
Cited by7 cases

This text of 131 So. 2d 913 (Story v. Story) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Story v. Story, 131 So. 2d 913 (La. Ct. App. 1961).

Opinion

131 So.2d 913 (1961)

Audrey M. STORY et ux.
v.
Willie E. STORY, Administrator of the Succession of Mattie Webb Ott.

No. 5239.

Court of Appeal of Louisiana, First Circuit.

June 30, 1961.

*914 J. Douglas Nesom, Denham Springs, for appellants.

Henry A. Mentz, Jr., Hammond, for appellee.

Before ELLIS, LOTTINGER, JONES, HERGET and LANDRY, JJ.

JONES, Judge.

Audrey M. Story and his wife, Eula Graham Story, brought this suit against the Administrator of the Succession of Mrs. Mattie Webb Ott, deceased mother of plaintiff, Audrey M. Story, to recover the sum of $5,535 for nursing services and board and lodging furnished decedent, Mattie Webb Ott, from December 4, 1954, to her death on March 3, 1957. From a judgment of the District Court rejecting their demands they have perfected this appeal.

Plaintiffs alleged that the personal and nursing services rendered by Mrs. Eula Story were worth $180 per month and that a reasonable value for board and lodging furnished the decedent was $25 per month. They alleged that during the period plaintiffs attended and kept Mrs. Ott in their home, she was seriously afflicted in both body and mind and that during a major portion of the period she was completely and utterly helpless and an invalid. They went on to allege that, other than state institutions, there was no other person who could or would render the services so vitally needed by the decedent.

The Administrator filed an answer to the petition denying all of the allegations contained therein. He averred that during the 27 months which plaintiffs claimed they kept and attended to Mrs. Ott the decedent spent only 20 months of that time in the plaintiffs' household and under their care. The following is an extract from the Answer *915 wherein the Administrator admits plaintiffs were paid or compensated for their services:

"8.
"That during the period aforementioned, Mrs. Mattie Webb Ott was receiving $68.00 per month from the State Department of Public Welfare, together with the sum of $30.00 per month as rental for the house listed in the inventory, that said $98.00 per month was received and used by Audrey M. Story and Mrs. Eula Graham Story for whatever purposes they wished.
"9.
"That the sum of $98.00 per month is a reasonable and adequate remuneration for the services rendered by plaintiffs to the decedent.
* * * * * *
"11.
"That the $98.00 per month received by plaintiffs was full and adequate payment to them for said services and plaintiffs are without cause or right of action to collect twice for these services."

The testimony reflects that Mrs. Mattie Webb Ott was an elderly lady with declining health when she came to live with the plaintiffs in December, 1954. She was diabetic and suffered with "hardening of the arteries." She had a large number of grown children and owned her home. Prior to her going to live with the plaintiffs, her son, Bailey Ott, and his wife lived with her at her home from October, 1946, until June, 1953. In July, 1953, her daughter, Mrs. Stella Ott Perrault, moved into decedent's residence and lived with her until October, 1954. When decedent contacted Mrs. Perrault in connection with the latter coming to live with her, she advised Mrs. Perrault she had talked with all of the children and they had agreed that if Mrs. Perrault would live with decedent, the latter would give her the place or residence. Mrs. Perrault accepted the offer and moved in with her mother. Mrs. Perrault testified that prior to her moving in with decedent, she and her mother discussed the transfer of her mother's property to her with an attorney in Denham Springs, and they were advised by the attorney that decedent could not give away or donate all of her property. Nevertheless, when Mrs. Perrault moved from decedent's residence, a son, Alvin Ott, contacted plaintiff, Eula Graham Story, about the latter's daughter moving into decedent's residence and caring for her in exchange for the daughter being given the place. This offer was refused. Mrs. Eula Story testified she told Alvin Ott that in the event Emmett Story, another son of decedent, would not care for Mrs. Ott, she, Mrs. Eula Story, would take and care for decedent for the same thing, namely, decedent's residence.

Plaintiff, Eula Story, testified decedent told her to rent or move into decedent's residence, since plaintiffs were to receive the property at her death, provided they cared for her for the rest of her life. Plaintiff, Audrey Story, testified his mother told him she had advised a Mrs. Whittacker, eventual lessee of his mother's property, that whoever took care of her (decedent) could rent the house, "because the place would go to the ones that took care of her the rest of her life." Mrs. Ouida Hodges, neighbor of plaintiffs, testified that on one of her visits with decedent at plaintiffs' home, in response to an inquiry concerning how long decedent was going to be in the plaintiffs' residence, decedent said "from now on out, I gave them my home to take care of me the rest of my days." None of the other heirs of decedent admitted having knowledge of the arrangement that plaintiffs were to receive decedent's home and property in exchange for their caring for her the rest of her life.

To provide adequate facilities for decedent, plaintiff, Audrey Story, completed an unfurnished bedroom at an expense of more *916 than $200, and put in bathroom fixtures at a cost of $450. When Mrs. Mattie Webb Ott moved in with plaintiffs on December 4, 1954, she was able to move about, and could attend to most of her personal needs. However, she could not get in and out of the tub by herself nor wash and iron her clothing.

In September, 1955, decedent suffered a stroke and thereafter was practically helpless. She had to be kept on special diabetic diet and take injections of insulin daily. She also required digitalis and vitamins. All of her meals were prepared and taken to her. She could not dress herself and Mrs. Story was required to make much new clothing due to decedent's tendency to rip and tear her clothing. Decedent had little control of her physical functions and would often evacuate in her room or wherever she happened to be. Someone was required to bathe her and clean the house after her. She dipped snuff and would often spit upon the floor and walls. Constant care was required because of the damage she would do to the room furnishings and the room itself. Special foods had to be purchased and prepared for her, she had to be taken to the doctor, and Mrs. Eula Story would often carry her to visit her children.

The debt sued upon is a community debt and Audrey Story, as head and master of the community, is the only one entitled to prosecute this claim. Therefore, Mrs. Eula Story has no right to stand in judgment in the collection of this community debt. Succession of Berthelot, La.App., 1 Cir., 1945, 24 So.2d 185; Prats v. Prats, La. App.Orleans 1955, 77 So.2d 205; Casente v. Lloyd, La.App.1953, 68 So.2d 329.

Article 229 of the LSA-Civil Code provides that children are bound to maintain their father and mother and other ascendants, who are in need. Services rendered by a son or daughter to a parent in the way of nursing and attention to the physical needs of the parent are presumed to be gratuitous, and no recovery can be had, unless on a contract either expressed or implied. Farrar v. Johnson et al., 172 La. 30, 133 So. 352; Succession of Berthelot, supra; Muse v. Muse, 1949, 215 La. 238, 40 So.2d 21.

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Bluebook (online)
131 So. 2d 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/story-v-story-lactapp-1961.