Opinion
Rehearing Denied March 19, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 896
Fischer, Fischer & Beatty, Albert P. Fischer, Ward H. Fischer, James D. Beatty, Philip H. Potter, Fort Collins, for plaintiffs in error.
March, March & Sullivan, Arthur E. March, Jr., John-David Sullivan, Fort Collins, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The plaintiffs in error were the defendants in the trial court representing the estate of the deceased, Frank E. Baker, and the residuary beneficiaries, and will herein be referred to as the estate. The defendant in error, Mary Ann Lundstrom, was a claimant against the estate and will herein be referred to as claimant or by name.
Mr. Baker died November 29, 1965. His will was admitted to probate December 20, 1965. This will left nothing to the claimant. Mrs. Lundstrom filed a claim against the estate for services rendered to decedent during his lifetime. The jury returned a verdict for $15,000, the full amount of the claim. The estate moved, inter alia, for a new trial, which motion was denied.
The claim against the estate was for personal services rendered, i.e., housework, cleaning, laundry, cooking, mending, yardwork and practical nursing service, extending over a period of 11 years. Claimant alleged a contract for these services and that the value thereof was $15,000.
To clarify the issues prior to trial, a pre-trial conference was held and a pretrial order entered providing in part as follows:
'It is further understood from the Pre-Trial Conference that claimant's theory is predicated on the claim that the decedent agreed to make a will leaving a substantial amount of his estate to the claimant for the services rendered by the claimant to decedent in his lifetime, and that claimant has now filed a claim for $15,045 and is seeking the reasonable value under quantum meruit or quantum valebant for the services rendered by the claimant to the decedent during his lifetime and is not seeking to enforce a contract to make a will in favor of the claimant per se, except insofar as the principal of law is that having agreed to make such a will the claimant is entitled to recover reasonable value for services rendered.'
Evidence of services rendered was presented by the testimony of several neighbors. They testified that at various times over the years they had observed various services rendered to decedent by the claimant.
There was some evidence of an agreement to compensate the claimant for services. The decedent had executed eight or more former wills in which claimant was a beneficiary, however, the bequest or devise varied from will to will as to the value and kind. There was also testimony of a neighbor that the decedent at one time told her that he was 'providing for (the claimant) a substantial amount in his will because they were doing this for him.'
However, as to the value of the services rendered, there is a complete void in the record of any information, evidence, or even an attempt by claimant to establish any value.
The trial court instructed the jury correctly as to the law concerning value of services. Instruction No. 3, among other things, stated that the claimant must prove the reasonable value of the services. Instruction No. 12 states:
'Even if a contract is proved, the claimant Cannot recover unless she proves to your reasonable satisfaction the reasonable value of any services rendered. It is not necessary that the plaintiff prove an exact amount.' 'If on the basis of the evidence you can do no more than speculate as to the reasonable value of any services rendered Then you must return your verdict for the estate * * *' (Emphasis added)
Obviously the jury did not follow these instructions. There being no evidence as to value in the record, they had speculate in order to render a verdict for $15,000. There is also some question raised by the record as to whether the jury followed some of the other instructions.
A case very much in point and which we feel to be controlling on this issue is Wysowatcky, As Administrator of the Estate of Maude Lee v. Lyons, 137 Colo. 578, 328 P.2d 576. In this case the claimant also filed a claim against the estate for personal services rendered to the decedent. Witnesses testified on behalf of claimant as to various and numerous services performed for the decedent. The trial court allowed the full claim of $750.00. At page 579, 328 P.2d at page 576 the court said:
'No witness testified as to the value of the services rendered by claimant, hence this case is controlled by our holding in Carl v. Northcutt, Administrator, 48 Colo. 48, 108 P. 994. There this court said: '* * * Not a vestige of evidence was introduced to establish the worth of that service, whatever it may have been. In the total absence of such testimony no part of the claim can properly be allowed.'
'* * * The only place in this entire record where the sum of $750.00 appears is in the sworn claim filed by Claimant. The claim on file has no evidentiary value and is merely the statement of a demand against an estate to be proved in the same manner and by like evidence as would be required in other cases where one defends as an administrator.'
The Supreme Court in that case reversed the trial court and remanded the case for a new trial.
It is our opinion that in the present case the trial court was in error in not granting the estate's motion for a new trial.
The judgment is reversed and the cause remanded for a new trial on all issues.
SILVERSTEIN, C.J., and DUFFORD, J., concur.