Opinion
Dec. 10, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Evidence that claimant performed work for decedent in the nature of a domestic servant and a companion, and testimony by former housekeeper of decedent that her wages while similarly employed were between $150 and $200 a month sustained award of $12,000 to claimant who rendered services to decedent for over five years. C.R.S. '63, 154-1-2(1).
Spurgeon, Aman & Hanes, Richard W. Hanes, Gregory R. Piche, Colorado Springs, for executor-appellant.
George A. Hinshaw, Paul E. Valentine, Aurora, for claimant-appellee.
KELLY, Judge.
The First National Bank of Colorado Springs, executor of the estate of M. Frances Bennett, appeals from a judgment awarding $12,000 to Adeline Morris for services rendered to Bennett. The executor contends that there was neither evidence establishing an implied agreement to pay for the services nor evidence showing their reasonable value, and that, in any event, Morris cannot recover on an implied agreement because her claim was based on an express contract. We disagree and therefore affirm the judgment of the trial court.
M. Frances Bennett was, at the time of her death in 1971, an elderly single lady living alone in her home in Denver. Her health had been failing for some years and in January 1966, she was bedridden and very ill with asthma. In early or mid-January, Bennett instructed her housekeeper, Jewell Tinsley, to get in touch with Adeline Morris, a yoga teacher. Tinsley did so and Morris arrived at the Bennett home the following day. Tinsley overheard part of the conversation between the two women about what Morris was to do, and heard Bennett inquire of Morris about the cost of these services, but Tinsley did not hear the response.
For over five years thereafter, however, Morris was in almost constant attendance upon Bennett, not only giving her breathing exercises and foot massage, but also running errands for her, providing her transportation to and from doctors' offices, procuring food and groceries, acting as traveling companion and housekeeper, cooking special foods, attending her in the hospital, and otherwise ministering to the elderly lady's needs and desires. On a number of occasions, Bennett told third persons that Morris would ultimately receive Bennett's house and automobile, but Bennett's will, executed in August 1966, made no such provision.
Although Morris was precluded by C.R.S.1963, 154--1--2(1) from testifying to the value of her services, Tinsley, who had worked as Bennett's housekeeper for two four-month periods, said she had been paid $150 a month in 1966 and $200 a month in 1968. Morris's claim against Bennett's estate alleged that Bennett had agreed to bequeath to Morris her home and automobile of the approximate value of $35,000, but prior to the hearing, the claim was orally amended to include an alternative request for the value of the services in quantum meruit.
The executor's contention that Morris cannot recover the value of her services because her claim was based on an express contract is without merit. The issues in such cases are framed at the hearing, 1965 Perm.Supp., C.R.S.1963, 153--12--5(1), and, in the absence of proof of an express contract, an agreement may be implied and recovery had on the basis of quantum meruit. See Larson v. American National Bank, 174 Colo. 424, 484 P.2d 1230; O'Byrne v. Lawson, 110 Colo. 304, 134 P.2d 199; Tucker v. Tucker, 21 Colo.App. 94, 121 P. 125.
There is evidence in the record that Morris performed these services for Bennett, diligently and devotedly. There is no presumption that services performed by a claimant who is unrelated to decedent were given gratuitously simply because they were rendered with a high sense of devotion to duty, O'Byrne v. Lawson, Supra, and the testimony likening the relationship between Bennett and Morris to that of mother and daughter does not negate the implied agreement to pay for the services rendered by Morris. See Mitchell v. Sheets, 92 Colo. 439, 21 P.2d 714.
While there was no evidence of the value of Morris's services as a yoga instructor, and the trial court did not compensate her for these services, there was evidence that Morris's work for Bennett was also that of a domestic servant and companion. Tinsley's testimony of her wages while similarly employed was sufficient basis for the trial court's award of $12,000 to Morris. See Bronstein v. Ryan, 78 Colo. 231, 241 P. 539.
There being evidence in the record to support the trial court's findings, they will not be disturbed on appeal. Adler v. Adler, 167 Colo. 145, 445 P.2d 906. Judgment affirmed.
COYTE and BERMAN, JJ., concur.