Truesdail v. Truesdail's

72 Mo. App. 155, 1897 Mo. App. LEXIS 145

• Court: Missouri Court of Appeals
• Decided: November 9, 1897
• Status: Published

Opinion

Bland, P. J.

This suit originated in the probate court of St. Louis upon the following account presented by respondent for allowance against the estate of Mary A. Truesdail, deceased, to wit:

To services rendered by Mary A. Truesdail to deceased as nurse and attendant during her last illness, from October 14, 1895, to January 5, 1896, eighty-two days, at $1.75 per day......$143 50 '

To washing wearing apparel of the deceased during the same time 11 00 To cash paid for medicine for the deceased the last two weeks of her illness ......................................... 730

Total............................................. $161 80

The cause was-appealed to the circuit court of St. Louis city, where upon a trial de novo before the judge sitting as a jury, judgment was recovered by the respondent for the full amount of her claim. Prom this judgment the executor appealed.

Adei°ceUs'„ffi!‘ ciency' Appellant’s first contention is that the evidence was insufficient to prove the account. There is no merit in this contention. The evidence is all one way, to the effect that the deceased arrived at the house of respondent October 9, 1895; that in a short time thereafter she was taken sick, and continued sick until January 5, 1896, when she died; that during her sickness the respondent nursed and cared for her; that during the last three or four weeks of her sickness she was as helpless as a child, and required a great deal of attention; that the respondent was capable and faithful in her attentions to deceased, and that her services were worth what she asks, and that she paid out the money charged for medicines.

EInc?NCE: infer’ Appellant’s further contention is that the deceased was a member of respondent’s family, and that the services were rendered to her as such, and therefore no recovery could be had, unless there had been an express contract or agreement to pay for them. The evidence does not support this contention. The mere fact that respondent’s husband was the son of deceased, and that she took sick and died at his house, is not sufficient to establish the fact that she was a member of his family. She was taken to respondent’s house by another son, and she remained there until she took sick. For what purpose she was taken there does not appear from the evidence. It does appear that she was not living there prior to October 8, and that she had ample means of her own for her support. It is not stated that she was taken to her son’s to remain there as a member of the family, and it is not to be presumed that such was the purpose and intention of the deceased and of the respondent, when to indulge such a presumption would probably have the effect to defeat the collection of the compensation by respondent for services justly and faithfully earned by her. It is much more consonant with reason and justice to take the view the learned trial court took, that the fair inference to be drawn from the evidence is, that the deceased went to her son’s on a visit to him and his family; that while there on her visit she took sick and died.

It is unnecessary to notice the declarations of law given by the court, further than to say that they were more favorable to appellant than the facts warranted.

With the concurrence of the other judges the judg-r ment will be affirmed.