Gorey v. Gregg, Exr.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Madison county, Ohio. The action was one wherein the plaintiff sought to recover from the executor of the estate of H. Alice Calhoun, deceased, the reasonable value of services rendered by the plaintiff to the decedent during a period extending over seven and one-half years up to the decedent's death.

The petition was one based upon an express contract for the reasonable value of the services performed.

The first defense admitted all formal allegations and denied generally the contract, the services and the value. A second defense alleged the kinship of plaintiff and decedent as niece and aunt, respectively; that their mode of living constituted plaintiff a member of decedent's family; and that any services rendered by plaintiff in the household were gratuitous and for the mutual benefit of both parties.

A general denial was filed in reply.

Near the close of the plaintiff's case in chief, she moved for leave to amend at bar so as to declare upon an implied contract instead of an express contract. Leave was granted over defendant's objection.

A will executed by decedent in 1929, making some provision for plaintiff, but without any statement as to such provision being compensation for services rendered, was admitted in plaintiff's behalf over defendant's objection. A second will of decedent executed in 1941, making some different provision for plaintiff, but also without any explanation as to its being compensation for her or an acknowledgment of services rendered, was received in plaintiff's behalf over the defendant's objection. Plaintiff also offered a deed, executed in 1943 by decedent, conveying a farm to James and Ruby Timmons, who were also beneficiaries under the will, and reciting a consideration of "one dollar" and "other consideration." That deed made no mention of plaintiff and did not mention compensation or services. It was admitted over defendant's objection.

Defendant moved for a directed verdict at the close of the plaintiff's evidence and the motion was overruled. Evidence was then offered by the defendant and, there being no rebuttal, defendant renewed his motion for a directed verdict at the close of all the evidence. That motion was overruled and the matter was submitted to the jury which returned a verdict for the plaintiff. Motion for new trial was overruled and judgment was entered on the verdict.

The record discloses that the decedent was an old and feeble woman, being 85 years of age at the time of her death. Her husband died before her and left her some real estate, including farms as well as other property. She was all alone and had no close relatives, although she had several nephews and nieces. She had no one to take care of her but was greatly in need of assistance. Shortly after her husband's death, she tried to get her niece, the plaintiff, to come and live with her in the country and look after her, for which she offered to give the plaintiff the sum of $1,000. That offer was not accepted by the plaintiff. Thereafter, from time to time leading up to the middle of November 1936, the decedent tried to get the plaintiff to come and look after her and on several occasions the decedent exhibited a will and discussed its provisions with the plaintiff under which the decedent left her, upon the death of testatrix's husband, a half interest in all her real estate and farms during her life and to her heirs, as well as a cash bequest of $1,500. That will was executed on the 18th day of October 1929. Later, the decedent acquired a house in West Jefferson and the plaintiff and her husband moved in with her. The husband moved out of the house by the end of the year of 1936, but the plaintiff stayed on looking after the decedent up to the time of her death on January 5, 1944.

In the fall of 1937, when the plaintiff threatened to leave, the decedent said, "You are going to stay here with me. I need you and you stay here and take care of me and I will see that you always have a home and are taken care of." At another time the decedent said, "She could do more for her than Mr. Gorey [her husband] could, and she intended to."

The decedent depended upon the plaintiff's aid and care to such an extent that she would not even let her go to look after a relative's wife during a temporary illness, the decedent saying that there would be no one to take care of her if the plaintiff went away. The record discloses that the character of the services which the plaintiff had to perform for the deceased was burdensome and loathsome, and that everything conceivable was done to make the last seven and one-half years of the decedent's life as pleasant and comfortable as possible. The plaintiff took care of the house and did all the washings which were quite voluminous, as the decedent suffered from some kidney ailment as a result of which she unfortunately lost her control. No beneficences, which are usually exhibited between members of a family, ever flowed from the decedent to the plaintiff. Once when the plaintiff required the services of a physician the decedent notified him that she was not responsible and would not pay the bill. The record also discloses that on one occasion when the decedent had a guest for dinner, the plaintiff was not allowed the same food as was consumed by the decedent and her guest.

The first error assigned was the permitting of plaintiff to amend her petition at bar so as to change her cause of action from express contract to an implied contract. The original petition alleged in part, "H. Alice Calhoun agreed with plaintiff that if the plaintiff would move into the home of the said H. Alice Calhoun, look after the household duties and care for the decedent during her lifetime she would pay plaintiff what said services were reasonably worth * * *."

During the progress of the trial, counsel for the defendant questioned whether the plaintiff was proceeding on the theory ofquantum meruit or recovery under an express contract. In order to clarify that proposition the plaintiff was granted leave to amend at bar, the amendment alleging in part, "at the instance and request of the said H. Alice Calhoun the plaintiff moved into the house of the said H. Alice Calhoun and at her instance and request looked after the household duties and cared for the decedent during her lifetime; and at her instance and request, the plaintiff became the household servant and took care of the house * * *," etc.

It is urged by the defendant that such amendment had the effect of substantially changing the plaintiff's claim for services rendered and therefore was not permitted under the liberal provisions of Section 11363, General Code. It is also claimed that it necessarily follows that the plaintiff's claim for her services rendered as asserted by the amendment was never "presented to the executor for allowance," since the claim for services rendered, which the executor admits was presented to and rejected by him, must be presumed to be a claim for services rendered under an express agreement.

Under the provisions of Section 11363, General Code, the trial court may, in its discretion, allow amendment before or after judgment in furtherance of justice when the amendment does not substantially change the claim. The plaintiff's claim was for a named sum as compensation for services rendered to decedent in the nature of household work and nursing care over a stated period of time. The evidence offered in support of that claim proved an implied agreement to pay. The claim was identical whether the evidence had established an implied or express agreement to pay for the services rendered. The amount was the same. The parties involved were identical. The services rendered were the same and they were rendered for and on behalf of and at the request of the same person.

In the case of Bolsinger v. Halliday, 4 Ohio App. 311, the court, in the first paragraph of the syllabus, said:

"The substitution, by apt allegations in an amended petition, of an express agreement for an implied agreement to do the same thing, is not a departure from the cause of action in the first instance, but merely provides a different method of proving the action already in court."

In the discussion of the subject of express and implied contracts in 9 Ohio Jurisprudence, 240, Section 8, the following statement is made:

"A contract can be made either expressly or by implication. The form of the contract, whether implied or express, has been said to be only the mode of proving the cause. It is evidence that the cause of action exists, but it is not itself the cause of action. A written instrument is not the contract; it is merely evidence thereof * * *. An express contract and a contract implied in fact differ only in the mode of proof."

It is our conclusion that the amendment allowed by the court during the course of the trial did not change the cause of action and the amendment was proper. Therefore, the claim that was presented to the executor under Section 10509-112, General Code, was the same claim which is the basis of this action and the same was properly submitted.

The second, third and fourth assignments of error are that the trial court erred in admitting the wills and deed in evidence.

We are of the opinion that those exhibits were properly admitted. They were offered as reflecting on the question of whether the plaintiff went to the decedent's home merely as a matter of "family relationship" and rendered service as an incident thereto without any expectation of compensation, or whether the plaintiff was induced to come to look after the decedent not as a matter of rendering gratuitous services but with the intention on her part to receive and on the decedent's part to compensate her for those services. If they reflected at all on that issue all were to be considered together, and all were to be considered in the light of the other expressions of intention by the decedent to compensate the plaintiff for the services rendered. A party may not successfully complain of error unless his interests are prejudiced thereby. The trial court carefully charged the jury on the subject of those exhibits, in the following language:

"Certain exhibits have been introduced in evidence in this case. I refer to the wills and deed. I charge you that those documents are not in issue in this case as to their merit or failure as such, but they are admitted and may be considered for one purpose, and that only, and that is, that they may be considered insofar only as they reflect, if they reflect at all, on the issue in this case as to whether or not the services of the plaintiff were rendered gratuitously."

It is, therefore, our conclusion that those exhibits were properly admitted in evidence. Moreover, their admission was not prejudicial to the defendant. They showed substantial bequests to plaintiff, and, by the latter will which was probated, she received $1,000 and a residuary share. Defendant could well argue that she had been compensated.

The fifth and last assignment of error was the overruling of defendant's motion for a directed verdict at the close of plaintiff's evidence and again at the close of all the evidence.

Counsel for the defendant contends that a verdict should have been directed on the theory of "family relationship" or failure to prove "a meeting of the minds" on an implied contract. Those were both factual questions properly submitted to the jury and which the court covered fully in its charge. The charge was fair and complete. The jury's verdict was supported by the evidence. We find no prejudicial error, and the judgment of the trial court is affirmed.

Judgment affirmed.

MONTGOMERY, J., concurs.

MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.