Opinion
No. 34538
Decided July 11, 1956.
Contracts — Oral employment contract for indefinite period — Amount of compensation not specified — Fair value of services recoverable — Action to recover for services rendered — Pleading — Petition alleging three causes of action — Overruling motion requiring plaintiff to elect, not reversible error, when — Limitation of actions — Statute begins to run, when.
1. In an action to recover compensation for the rendition of services, where the petition sets forth three causes of action, the first comprising an itemized account covering the entire period of service, the second being based on the rendition of described services under an express contract, over a part of such period and of the reasonable value of a stated amount per month, and the third being based on the rendition of the same and different described services under an express as well as an implied contract, for the remainder of the period and of the reasonable value of a stated amount per day, the total amount claimed in the second and third causes of action corresponding with that claimed in the first, it is not reversible error to overrule a motion to require plaintiff to elect on which one of the three causes of action he will proceed.
2. Where two persons enter into a definite oral agreement whereby one agrees to work for the other for an indefinite period and performs such work under a promise of payment but for no specified amount, the law invokes the standard of reasonableness and the fair value of the services rendered is recoverable.
3. Where a contract of employment is a continuing one with no fixed date of termination, the statute of limitations does not begin to run until the services rendered under such contract actually end.
APPEAL from the Court of Appeals for Monroe County.
This action had its inception in the Court of Common Pleas of Monroe County, when Edna Weber filed her petition in that court against F.R. Billman and Walter L. Weber, executors of the estate of Otto J. Weber, deceased, claiming the sum of $17,055 for services rendered the decedent from August 1, 1940, to February 6, 1953, the date of his death.
The cause came on for hearing on the amended petition, the amended answer and the reply. The amended petition contains three causes of action. As to the first cause it is alleged that there is due plaintiff from the defendants, on an account, the sum of $17,055, with interest from February 6, 1953, for work and labor performed by plaintiff for the decedent. The copy of the account attached to the amended petition sets forth the sum of $375, at the rate of $75 per month from August 1, 1940, to December 31, 1940, for "services consisting of washing, ironing, cooking of meals, cleaning, canning, taking care of truck patch, taking care of chickens, milking and staying at night." Then follow itemized charges for the years from 1941 through 1950 at the rate of $75 per month or $900 per year for the same type of services hereinbefore described. Then, the account covers the period from January 1, 1951, to February 6, 1953, for which plaintiff claims compensation at the rate of $10 per day for services of the kind described plus "nursing care due to debtor's [decedent's] sickness and being confined to his home and his bed and requiring constant attention."
For her second cause of action plaintiff alleges that on or about August 1, 1940, she entered into an express contract with the decedent whereby he agreed to pay her a reasonable sum for performing the type of services outlined above; that she performed those services; that a reasonable charge therefor was $75 per month; and that she worked for him under such express contract from August 1, 1940, to January 1, 1951.
For her third cause of action plaintiff alleges that beginning on or about January 1, 1951, "there was an implied contract, as well as an express contract" whereby plaintiff was to take care of decedent in his last illness; that she remained at his home constantly and nursed and cared for him until his death; and that such services were reasonably worth $10 per day.
Plaintiff alleges also the timely presentation of her claim to the defendants and its subsequent rejection.
It will thus be seen that the first cause of action in the amended petition embraces plaintiff's entire claim, itemized. As to the second cause of action it is alleged that the services rendered by plaintiff from August 1, 1940, to January 1, 1951, were under an express contract and were reasonably worth $75 per month, or a total of $9,375. The third cause of action relates to the performance of different and more difficult services under contract from January 1, 1951, to February 6, 1953, and it is alleged that their reasonable value was $10 per day, or a total of $7,680.
Defendants' motion to compel plaintiff to elect upon which one of the three causes of action she would proceed was overruled, as were similar motions made during the trial of the cause. The answer originally filed, as well as the amended answer, admitted the capacity of the defendants as executors and the presentation and rejection of plaintiff's claim. Such latter admission, shortly prior to trial, was crossed out by one of counsel for defendants. This was done without the court's knowledge or permission and without notice to opposing counsel, and, in our opinion, the court properly ignored and disapproved such procedure.
The amended answer continues with a general denial, followed by the defenses of payment and the six-year statute of limitations, and finally avers that a family relationship existed between plaintiff and the decedent during the whole period covered by her claim, and that such claim is unenforceable. The reply is a general denial.
The cause came on for trial, and competent evidence was introduced which substantiates the following narration:
In the summer of 1940 plaintiff was living on a 65-acre farm with her mother and brother in Summit Township, Monroe County, Ohio, near the village of Lewisville. At that time she was employed at Fisher's filling station. Otto J. Weber, the decedent, a bachelor 70 years old and plaintiff's great-uncle, lived alone on his 200-acre farm some three miles east of Lewisville. "Around August 1940," he personally contacted plaintiff and her mother, said he needed help and requested plaintiff to come to his place and look after things. "He said he would see that Edna [plaintiff] was taken care of, that she would be paid for being out there." Decedent told the rural mail carrier who delivered his mail that plaintiff "was coming out there to take care of Otto" and that "she would be properly taken care of after his death."
Another witness, a friend of decedent for many years, testified as follows:
"Q. What did he [decedent] say? * * * A. The day after he had been out to see Edna, he told me he had been out and made arrangements for Edna to come there and do the housework around there at the house, and he said that Edna and her mother were — well, at that time she was a little afraid to come, afraid she couldn't do it but that she would try it, and she come there and was there afterwards from then on.
"Q. Did Otto say anything to you in regard to compensation? * * * A. The only thing he said, `Edna will be taken care of.'"
In August of 1940, plaintiff did go to decedent's place and for a part of each day performed all those services which a woman living on a farm ordinarily performs. Plaintiff also worked on the farm where her mother and brother lived and kept her clothes and belongings there. The type of work mentioned continued uninterruptedly until the end of the year 1950.
From that time on, decedent noticeably deteriorated both physically and mentally, became demanding and difficult to please and required constant attention both day and night, which attention plaintiff gave him. Decedent spent much of his time in bed and had mental lapses and hallucinations, and his eyesight became poor. With the passing of time, he lost control of his bodily functions. Plaintiff bathed and shaved him, changed and washed his clothing and bedding and performed all the duties of a practical nurse until decedent's death.
At the close of plaintiff's evidence and again at the close of all the evidence, defendants moved for a directed verdict, which motions were overruled.
At the request of counsel for the defendants, the following special instruction was given to the jury before argument:
"The court instructs the jury that if you find that plaintiff was a member of decedent's household and resided therein in a family relationship, then plaintiff cannot recover in this action unless you further find that there was an express contract between plaintiff and the decedent that decedent agreed to compensate plaintiff for such alleged services, and the burden is upon plaintiff to prove such contract by clear and convincing evidence."
The trial judge's general charge was unusually complete and explicit. He analyzed and explained the pleadings in detail and placed the burden of proof on plaintiff to show that her claimed services were rendered at the request of the decedent, that they were of value, and that the decedent promised to pay therefor. He explained further that plaintiff's recovery, if any, should be limited to the reasonable value of such services as she actually performed, and that, if the evidence showed that plaintiff had been paid for her services, she could recover nothing. He charged next on the statute of limitations and told the jury that, where the statute of limitations is set up against an account, each item of the account is barred six years after the right of action thereon accrues, but that, if the jury should find that the services were rendered under an agreement which did not specify any time for payment or when the contract was to terminate and such services were performed under an entire continuous contract, then the statute of limitations did not begin to run until the services ceased.
Next, the judge charged at length and correctly on the question of family relationship and the rules of law where the evidence shows such a relationship. The judge then covered the subject of express and implied contracts in an accurate fashion and went into the burden of proof and the character of evidence necessary in given situations.
Although somewhat repetitious in places, the charge as a whole covered every issue in the case and was substantially correct. No special interrogatories were submitted or given. The jury returned its general and unanimous verdict in favor of plaintiff for $12,500, and judgment was entered thereon.
Defendants' motions for judgment notwithstanding the verdict, for a new trial and for a vacation of the judgment were all overruled.
An appeal on questions of law to the Court of Appeals resulted in an affirmance of the judgment below. There was no written opinion.
The cause is now in this court for review and final determination, pursuant to the allowance of a motion to require the Court of Appeals to certify the record.
Mr. T.J. Kremer and Mr. Andrew J. White, Jr., for appellee.
Mr. Edmund L. Matz, Mr. Capel E. Matz and Mr. Walter B. Moore, for appellants.
For their first assigned error, defendants insist that the Court of Common Pleas erred in overruling their various motions made before and during the trial to require plaintiff to elect upon which one of the several causes of action set forth in the amended petition she would proceed.
It would seem likely that plaintiff's amended petition is based on form No. 1447 contained in 2 Ohio Procedural Forms, where the source of such form is given as Simpson v. Holmes, Admr., 106 Ohio St. 437, 140 N.E. 395.
As has already been pointed out, plaintiff's first cause of action is based upon an itemized account detailing the entire services plaintiff claims to have rendered decedent from the date of her employment until such employment ended. Then for her second cause of action, obviously to escape the operation of the statute of limitations, plaintiff alleges an express continuing contract between her and the decedent, pursuant to which she performed services for him of a described kind from August 1, 1940, to January 1, 1951, of the reasonable value of $75 per month.
The third cause of action embraces the services rendered by plaintiff to the decedent under "an implied contract, as well as an express contract" from January 1, 1951 to February 6, 1953. These described services were rendered when the decedent was in a sharp decline both physically and mentally and when the services and attention he required were of a different and more exacting and difficult nature than those previously rendered, and she placed their reasonable value at $10 per day.
Although plaintiff's amended petition is not recommended as a model of good pleading, there is in reality nothing contradictory or confusing about it. We do not believe it to be fatally defective or that the trial court was under the duty to sustain defendants' motions to compel an election.
If plaintiff had been required to elect which one cause of action among the three she would pursue, she would have been placed in the position of abandoning a considerable portion of her claim. Had plaintiff been ordered to proceed on the first cause of action alone, the statute of limitations would have precluded her as to a substantial portion of the claim. Had she been required to elect between the second and third causes of action she would likewise have been able to assert only a part of her claim.
Under the circumstances, our opinion is that the trial court did not commit prejudicial error in overruling defendants' motions as to election. And we are confident the jury was not misled or confused, for the reason that the court painstakingly and thoroughly explained the situation to it.
The other errors assigned relate to the failure of the trial court to direct a verdict for defendants; to the refusal of the court to render judgment for the defendants on the pleadings; to the admission and rejection of evidence; to the general charge; and to the claims that the verdict is not sustained by the evidence and is contrary to law, and that the court erred in overruling defendants' motion for judgment notwithstanding the verdict.
It will be observed that as to her third cause of action plaintiff alleges "an implied contract, as well as an express contract." We do not regard this of much consequence. Although it is generally recognized that an express contract and an implied contract cannot coexist with reference to the same subject matter ( Hughes v. Oberholtzer, 162 Ohio St. 330, 335, 123 N.E.2d 393, 396), ample evidence was presented in this case from which the jury could and apparently did find that plaintiff and decedent entered into a definite oral arrangement whereby she left her own home and went to work for him at his express solicitation and request for as long as she might be needed, and that there was a clear understanding she would be compensated for her services. True, the amount of that compensation was not fixed, but, "if the contract makes no statement as to the price to be paid, the law invokes the standard of reasonableness, and the fair value of the services is recoverable," and, "where labor or materials are furnished by request and no price is agreed on, the law will imply an agreement to pay what they are reasonably worth." 12 American Jurisprudence, 878, Section 324. Compare 34 Corpus Juris Secundum, 825 et seq., Executors and Administrators, Section 774; 58 American Jurisprudence, 555, Section 55; Sussdorff v. Schmidt, 55 N.Y. 319, 324.
In the case of Snider, Exr., v. Rollins, 102 Ohio St. 372, 374, 131 N.E. 733, 734, this court said in a per curiam opinion:
"As to the other ground of error: `The application of the statute of limitations.'
"It is not contended here that the court wrongly charged the jury in this behalf. The contract was either a continuing contract in entirety during the lifetime of J.W. Snider, or it was a contract from day to day, month to month, or year to year. If the latter, the service rendered would be subject to the six-year statute of limitations, as contended for by plaintiff in error. If on the other hand, it was one entire contract operating during the lifetime of J.W. Snider, then the statute of limitations would not begin to run until the death of said J.W. Snider. There was no finding of fact as to which view the jury adopted, though from the compensation of $4,400 for the six years prior to the death of J.W. Snider, in view of the nature of the service, it may well be inferred that the jury regarded the evidence as showing one entire continuing contract. However, in either event, there was abundant evidence, especially in the nature of admissions to numerous parties, neighbors and friends, made by J.W. Snider in his lifetime, as to an intent and purpose on his part to pay the plaintiff below for the services he rendered.
"It is urged that this policy of the law opens the door wide for fraud upon decedents' estates. That, however, is largely counterbalanced by the fact that the plaintiff's mouth is closed and that he must make his proof through outside parties who presumably are more disinterested; and the jury is the first arbiter of whether or not the claims are bona fide and reasonable, and then the courts have a reviewing and supervising jurisdiction to right any wrong committed by the jury."
The trial court herein charged the jury strictly in accordance with the holding in the Snider case, and there was persuasive evidence before the jury to warrant the finding that there was a continuing contract which terminated only with the death of the decedent. The position taken by this court in the Snider case is abundantly supported. See 54 Corpus Juris Secundum, 51, Limitation of Actions, Section 133.
In their answer defendants allege payment. That is an affirmative defense, as the trial court charged, and the burden rested on defendants to prove it. The evidence showed only that plaintiff may have received something by the sale of eggs and milk from decedent's farm.
An examination of the bill of exceptions in this case presents a convincing case in favor of the plaintiff. She served the decedent faithfully, well and continuously for a period of more than 12 years, under a promise of payment. The decedent's other collateral relatives did little or nothing for him, and the jury's verdict represents substantial justice. There should be no reversal for technical errors.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART and BELL, JJ., concur.
STEWART and TAFT, JJ., dissent.
The account attached as an exhibit to plaintiff's amended petition and made a part of her first cause of action specifically shows a charge of $375 for "services rendered * * * at the rate of $75 per month" from "Aug. 1, 1940, to Dec. 31, 1940" and a charge of $900 for such services for each succeeding year 1941 through 1950, inclusive, at such rate. It is apparent therefore that plaintiff in that cause of action judicially admits that those respective amounts were due and payable at the end of each of those years. Nothing in the second cause of action requires an inference that the amounts prayed for thereunder, which are also sought under the allegations of the first cause of action, were to be payable at any times subsequent to the ends of the respective years in which the services had been rendered for which payment is sought. The exact words of that cause of action are:
"Plaintiff says that on or about the first day of August 1940 she entered into an express contract with the said Otto Weber wherein he agreed to pay her whatever was reasonable for her services for staying at his home at night and for washing, ironing, cooking meals, cleaning, canning, taking care of truck patch, taking care of chickens and milking. Plaintiff says that she performed these services and that a reasonable charge for her services were $75 per month; and that she worked at the said Otto Weber's home upon his express contract to so do from August 1, 1940, to January 1, 1951."
The majority opinion therefore must be based upon the false premise that the "express contract" relied upon in the second cause of action provided either expressly or by implication for a time of payment for all services rendered which would be at or within six years of the death of Otto Weber. There is no such allegation in the second cause of action. If there had been one, it would have been inconsistent with the judicial admissions made by plaintiff in her first cause of action and plaintiff's rights thereunder would therefore have been effectively limited by those admissions.
It may be that the wording of defendants' motion to elect was not such as to require plaintiff to elect to stand upon either her first cause of action or upon her second and third causes of action so that the court may have properly overruled that motion. However, it is apparent that the allegations of plaintiff's amended petition and her judicial admissions therein are such as to require the conclusion that the statute of limitations bars her recovery for services rendered more than six years prior to the death of Otto Weber, or perhaps even six years prior to her subsequent presentation of her claim to his executors. See annotation, 7 A.L.R. (2d), 198, 208 et seq.
This case differs from Snider, Exr., v. Rollins, 102 Ohio St. 372, 131 N.E. 733, in that there were apparently no judicial admissions involved in that case such as those found in plaintiff's first cause of action in the instant case. Likewise, it differs from the recent case of Moore v. Curtzweiler, Admx., ante, 194, where the petition alleged a contract expressly providing for payment at the death of the obligor.
By calculation, it is apparent that, even if plaintiff had recovered all that she asked for in her petition, she would have been entitled to substantially less than the amount of the jury's verdict for the services rendered during the period beginning six years before the death of Otto Weber. Therefore the charge of the court, permitting the jury to determine whether there was a continuing contract which terminated only with the death of Otto Weber and allowing recovery beyond that six-year period if there was, necessarily prejudiced defendants.
STEWART, J., concurs in the foregoing dissenting opinion.