Opinion
21346.
ARGUED SEPTEMBER 11, 1961.
DECIDED OCTOBER 24, 1961.
Specific performance. Coffee Superior Court. Before Judge Roddenberry.
G. H. Mingledorff, for plaintiff in error.
Arthur C. Farrar, J. W. Waldroup, contra.
1. A motion for directed verdict is in order only when such verdict, in the movant's favor, is demanded, and a motion for judgment notwithstanding the verdict may be granted only when a valid motion for directed verdict has been erroneously denied.
2. The petition and the evidence submitted upon the trial did not bear out the defendant's contention that the plaintiff failed to show the value of her services and the value of the property the deceased was to devise to her.
3. The plaintiff's evidence as to a contract to devise was plain, plausible, and uncontradicted, and was sufficient to prove such parol agreement beyond a reasonable doubt.
4. Where the plaintiff's husband denied the statements made by two witnesses for the defendant, it is presumed that his testimony was from his own personal knowledge; hence, this raises a conflict which should not be taken from the jury.
5. Whether the plaintiff made vague statements inconsistent with her claim of title to the disputed property was for the jury to determine.
6. Although as to some facets of the case there is conflict, the evidence amply authorized the verdict for the plaintiff.
ARGUED SEPTEMBER 11, 1961 — DECIDED OCTOBER 24, 1961.
This case is on appeal from the order and judgment of the Superior Court of Coffee County denying a motion for a judgment notwithstanding the verdict, following an adverse verdict and judgment on the trial of a case in equity for the specific performance of an oral contract for land, brought by Mrs. C. D. Weeks, Jr., against E. P. Daniel, as administrator of the estate of G. H. Pegram.
Mrs. Weeks filed her complaint alleging: that, on December 31, 1948, G. H. Pegram and his brother, John Pegram, were residing on South Gaskin Avenue in the City of Douglas, Georgia; and that on or about that date, G. H. Pegram came to her home and told her that, if she and her family would move into his home and "Do the cooking, house cleaning, clothes washing, bed making, nursing him and his brother when they were sick, ironing, and would stay with him and his brother all the time until his death, that he would execute a will leaving her" the land and house on South Gaskin Avenue.
The plaintiff alleged that she accepted this offer and moved into the Pegram home around January 2, 1949, and performed all of the duties required of her under the agreement until the deaths of G. H. Pegram and his brother, but that G. H. Pegram died intestate on December 7, 1958, and made no provision to convey the land to her or to pay her for her services. She alleged that both G. H. Pegram and his brother were old and decrepit men and were sick much of the time, requiring a great deal of care and attention, which she freely gave; that the Pegram house was an old house and was not worth more than $9,850, while the services which she rendered were worth $100 per month, or a total amount of $9,900 for the nine years and nine months that she lived in the Pegram home. The principal prayer of her petition was that title to the land above mentioned be decreed to vest in her.
The defendant filed his answer, in which he admitted that Mrs. Weeks moved into the G. H. Pegram home about the first of January, 1949, but denied that she and Mr. Pegram entered into a contract as alleged in her petition. He alleged that the only agreement had with her — and that was not with her alone but with her and her husband — was that if they would move into the Pegram home with Mr. Pegram and attend to the general housekeeping duties, they would all live together as one family, and Mr. Pegram would furnish the food and utilities such as gas, electricity, water, and telephone service, without cost to the Weeks as long as they were all satisfied and resided together; that it was under this agreement that the plaintiff and her husband moved into the Pegram home about the first of January, 1949, and remained there with him until his last illness in October, 1958. The defendant admitted that G. H. Pegram died intestate, but alleged that the estate was under no obligation in any manner to the plaintiff.
The case came on for trial before a jury at the March term, 1961, of the Superior Court of Coffee County. At the conclusion of the evidence, before arguments of counsel and before the court charged the jury, the defendant made an oral motion for a directed verdict in his favor, which was denied by the trial judge. After argument of counsel and the charge of the court, the case was submitted to the jury, and on March 14, 1961, the jury returned a verdict in favor of the plaintiff. Thereafter, on March 20, 1961, judgment was entered on the verdict, declaring the title to the land to vest in the plaintiff.
On April 3, 1961, the defendant presented to the trial judge a motion for a judgment notwithstanding the verdict, which was heard and denied at the June term, 1961, of Coffee Superior Court. From the judgment denying the motion this case is now on appeal to this court.
The only assignment of error contained in the bill of exceptions is that the trial judge erred in denying the defendant's motion for a judgment notwithstanding the verdict. Hence, our review of the case is confined to the validity of that complaint.
The following is a summary of the evidence adduced upon the trial of the case.
C. D. Weeks testified as follows: That, on or about December 31, 1948, while my wife and I were living in Douglas, G. H. Pegram and his brother came to our home and stated that, since the death of their housekeeper, they did not have anyone to cook, clean up the house, and do chores for them when they were sick. G. H. Pegram stated to my wife that, if she would do the cooking, house cleaning, clothes washing, bed making, nursing him and his brother when they were sick, and do all of the other house chores until his death, he would execute a will leaving his home on South Gaskin Avenue to her. My wife accepted the offer. After moving into the house about January 2, 1949, she performed all of the duties required of her under their agreement and did all of the household chores, looking after and caring for both G. H. Pegram and his brother during the times of their illnesses. Both men were in their eighties and G. H. Pegram was worth at least $300,000 to $400,000. Mr. Pegram had no children and needed someone to give them special attention. Both men were in fairly good health, but were opposed to going to the hospital for treatment. They were treated at home and much attention was given them by my wife.
The value of the services rendered by my wife was $100 per month over nine years and nine months, and she was never paid in any manner. We have lived in the house since January, 1949. When Mr. Pegram was taken sick in October, 1958, he was carried to the hospital under the insistence of his physician. While there, my wife constantly saw after him and cooked and kept house for his two nieces who were visiting. The property was worth from $6,000 to $8,000 and the services of my wife were worth more than that. The house was an old home.
During Mr. Pegram's stay in the hospital, we visited him daily, and my wife repeatedly told him that if there was anything he wanted her to do, she would do it. Mr. Pegram reaffirmed the agreement on numerous occasions. On his birthday, when my wife would prepare a cake, he would express appreciation for her services and — on the last such occasion — Mr. Pegram reminded her that she would receive the house and lot after his death. Mr. Pegram died, never having made a will. I bought part of the groceries and all of the gas. Mr. Pegram bought groceries and paid the water, light and telephone bills. The groceries I bought were sufficient to feed my family. We bought some furniture and a washing machine, with which my wife did Mr. Pegram's and his brother's washing.
On cross-examination, Mr. Weeks testified: Both my wife and I were present when Mr. Pegram asked her to come live with him. Mr. Pegram described the property by saying "it was my house and lot on the corner of South Gaskin Avenue and Bryan Street." There were some vacant lots adjoining the home place, which Mr. Pegram sold. I don't know why Mr. Pegram forgot to leave the place to my wife; after all, he was a very old man. I do not believe Mr. Pegram thought of the vacant lots as part of the home place. He did not know my wife prior to the agreement. He made the promise the first time he saw her, if she would perform the services which I described. I don't say whether it was reasonable or not. Neither he nor my wife insisted on the agreement being reduced to writing.
John Pegram, his brother, was in the home much of the time, usually six to eight months of the year. He was sickly and my wife waited on him. During his last illness my wife did not wait on him; for he was in the hospital. He later died in Augusta, Georgia.
The only reason I know why Mr. Pegram went back to North Carolina, prior to his death and before he was able to be dismissed from the hospital was because they took him anyway. He was well cared for and never expressed a desire to go. He was very sick and unconscious most of the time. My wife never told Mrs. Nicholson, Mrs. Daniel, or any person that she would not care for Mr. Pegram, but insisted, at all times, that she would care for him as long as he lived. My wife never wrote any letter to any person stating that she would not look after Mr. Pegram. She never stated to anyone that she would move if Mr. Pegram came back to live in the home in Douglas, Ga. Crawford Johnson did not do any cooking and housekeeping after we went to the Pegram home. He did yard work, drove Mr. Pegram's car and, to my wife, was just another mouth to feed.
Mr. Pegram was in fairly good health when the agreement was first entered into, but was sick a good part of the time during the last few years of his life and my wife had to wait on him. Both he and his brother were sick, several times, to the extent that it required glucose.
Mrs. W. C. Parrish, a witness for the plaintiff, testified: I am a trained nurse, have lived across the street from the Pegram home for many years, and have had many occasions to visit that home. On those visits, I saw that Mrs. Weeks did all the housekeeping, cooking and waiting on Mr. Pegram as if he were her father. Mrs. Weeks was very attentive to the wants and cares of Mr. Pegram at all times.
R. E. Currin, a witness for the plaintiff, testified: I have known Mr. Pegram for a long time and often visited him. On the occasions of these visits, Mrs. Weeks was keeping the house, doing the cooking, and I had many delicious meals there. I do not know of Crawford Johnson doing any cooking. I know that Mrs. Weeks looked after Mr. Pegram as a person would her father.
J. E. Crabb, a witness for the plaintiff, testified: I am a real-estate agent. I was well acquainted with Mr. Pegram and often visited him in his home. I often saw Mrs. Weeks cooking and keeping the house. On one occasion I asked Mr. Pegram if he wanted me to list his home for sale, but he replied that he did not want to sell it, "I expect Mrs. Weeks will get it." The house is old and its value, in my opinion, is $6,500.
M. G. Blackwell, a witness for the plaintiff, testified: I have known Mr. Pegram for many years and visited him. Mrs. Weeks was keeping the house, cooking the meals, and caring for him when he was sick. The only thing Crawford Johnson did was work around the yard and drive Mr. Pegram's car for him.
Dr. Horace Joiner, a witness for the plaintiff, testified: I was the Pegram brothers' physician and attended them many times at their home. John Pegram was very feeble and sickly and needed much medical attention and nursing from Mrs. Weeks. Both brothers had to be attended by me at their home when they were sick and had to be nursed and looked after by Mrs. Weeks. Mrs. Weeks did the cooking and nursing for both of them. I advised the family to send John Pegram to Augusta for treatment, which they did. I advised Mrs. Weeks to carry G. H. Pegram to the hospital for treatment. Mrs. Weeks did all of the nursing and house work when I was there. She did an excellent job in caring for and nursing both John Pegram and G. H. Pegram. She was very kind and affectionate to the old gentlemen at all times. They did not have any other person to live with them.
J. C. Little, a witness for the defendant, testified: I have known Mr. Pegram for a long time, but I don't know anything about any agreement between him and Mrs. Weeks. I heard Mrs. Weeks say something to somebody about two years' rent, but I am not sure what she was talking about. The rent which I heard Mrs. Weeks speak of could have been for the house where she lived or somewhere else. I delivered eggs weekly to the Pegram home, and Mr. Pegram paid for about half and Mrs. Weeks paid for about half. I do not know who did the house work and cooking, but I understand that Mrs. Weeks did the cooking and waited on the Pegram brothers when they were sick.
Crawford Johnson, a witness for the defendant, testified: After Mrs. Weeks moved in I didn't do much cooking. It was understood that Mrs. Weeks was going to get the house when Mr. Pegram died. No, she was not to get one of Mr. Pegram's farms; it was understood that she was to get the house. I help some with dishes. I waited on Mr. Pegram when he was sick. Mrs. Weeks is a good cook. After she moved in she did all the cooking, house cleaning, washing, ironing, and things like that. She nursed Mr. Pegram and his brother while they were sick.
Mrs. E. P. Daniel, a witness for the defendant, testified: I am a niece of G. H. Pegram and my home is in North Carolina. My cousin, Mrs. Nicholson, who was also a niece of Mr. Pegram, and I came to Douglas in the fall of 1958 when we learned that Mr. Pegram was very ill. We stayed in the Pegram home. Mr. Pegram was often unconscious and we did not know whether he would live, so we tried to find if he had made a will. After a thorough search, we found no evidence of one. Mrs. Weeks did not intimate that she was expecting anything for herself from Mr. Pegram's estate.
When it was learned that Mr. Pegram's condition was improving, Mrs. Weeks repeated more than once that she could not care for him any longer. I called my husband, with Mrs. Weeks present and told him that I would like to bring Mr. Pegram up there. Mrs. Weeks asked me if we wanted her to vacate the house and said nothing about having a claim to the home. I told her to stay on in the house until Mr. Pegram's condition improved. I could not leave Mr. Pegram without care. After my return to North Carolina, Mrs. Weeks wrote me along about the last of October, 1959, and stated again that she could not care for Mr. Pegram any longer.
Crawford Johnson assisted with the cooking and housekeeping. Mrs. Weeks did most of the cooking and house cleaning, and looked after Mr. Pegram while he was in the hospital. It was my understanding that Mr. Pegram furnished most of the food that was used in his home, and all of the utilities. I think Mrs. Weeks did an excellent job in looking after him. I know she visited him in the hospital every day I was there. She did most of the cooking for Mrs. Nicholson and me while we were staying at the home. Mr. Pegram seemed very fond of the Weeks. This was the only time I ever visited my uncle in Douglas. I do not have the letter that I testified about Mrs. Weeks writing me. I did not bring it with me. I do not know if they are in the home now or not. Mrs. Weeks did not tell me she was expecting anything for her services. I do not know why we looked for a will. I don't think it would have been unusual for Mrs. Weeks to tell me that she was expecting to receive the home. I know Mrs. Weeks did lots for him, but I know that he did lots for them. I would not say that it isn't right for Mrs. Weeks to be rewarded for her services. I am sure that Uncle Hunt would want them treated right.
This was the only time I ever visited Mr. Pegram while the Weeks family lived in his home. It was the only time I visited my uncle in Douglas over a period of 30 to 40 years. I can only testify to what I observed while I was in Douglas. Mr. Weeks had some furniture there; I think they were using their own furniture in their bedroom and also had a sofa in the living room. It was my understanding that the household expenses were paid by Mr. Pegram. I can not say that Mr. Weeks did not furnish some of the provisions.
Mrs. Nicholson, a witness for the defendant, testified: I came with my cousin, Mrs. E. P. Daniel, to Douglas when we learned that Mr. Pegram was seriously ill. Mrs. Daniel, Mrs. Weeks, and I sought diligently for a will. Mrs. Weeks assisted us, but never said anything about having a claim to the Pegram home. Mr. Pegram, as far as I could tell, was furnishing most of the food that was used in the household. The first time I learned that Mrs. Weeks was contending that Mr. Pegram promised to leave her the house was after this suit was filed. She said nothing about it the two weeks I was there. She told us that she could not remain in the home under the present circumstances. Mrs. Weeks and I were in the room when Mrs. Daniel called her husband about taking Mr. Pegram back to North Carolina. Mrs. Weeks asked me and Mrs. Daniel if we wanted her to move. Mrs. Weeks and her family stayed on and took care of his things and his relatives who visited Mr. Pegram before his death.
I visited my uncle twice while he was in Douglas. I know this to be a fact that Mr. Weeks owned some of the furniture in the house. I know that Mrs. Weeks was very "tentative" (attentive?) in cooking for and nursing Uncle Hunt when he was sick. I just say that I believe he did lots for them. I asked Uncle Hunt in North Carolina, after we moved him up there, if he owed Mrs. Weeks anything. He said he had given her the home. He didn't mean he was giving her a home. He just said I gave her the home. He meant that he had been furnishing them a home in the past. He stated, several times, he was going back to Douglas when he got well.
The defendant testified as follows: After I qualified as administrator, I stayed several days in Mr. Pegram's home. Mrs. Weeks asked me if I wanted her to move out of the home at that time, but I told her that I would rather have someone in it. She asked me to give her reasonable notice. She said nothing about an agreement with Mr. Pegram. The first I learned of any agreement was when my attorneys were notified that Mr. Weeks contended that Mr. Pegram had promised to leave the place to him.
I do not know why she lived in the home for two years after he died. She never did tell me what Mr. Pegram owed her for her services, and although she asked me if I wanted her to move, she did not state that she was going to move or would move. They attended to and looked after the home as if they owned it. They have had full and complete possession since the death of Mr. Pegram. I do not know anything about the contract with Mrs. Weeks.
1. A motion for a judgment notwithstanding the verdict may be granted only when a valid motion for a directed verdict has been made by the movant and erroneously denied. Code Ann. § 110-113 (Ga. L. 1953, pp. 440, 444; Ga. L. 1957, pp. 224, 236). A motion for a directed verdict is in order only where there is no conflict in the evidence and a verdict in the movant's favor is demanded. Code § 110-104.
2. The defendant's motion for a judgment notwithstanding the verdict sets forth ten reasons, lettered (a) through (j), why his previous motion for a directed verdict should have been granted. The first four of these reasons assert that the petition did not allege, and the evidence did not show, the value of the services rendered by the plaintiff and the value of the property Mr. Pegram was to devise to her by his will. These reasons are not in accord with the record, from which it clearly appears that the petition alleged, and the evidence submitted upon the trial showed, the relative value of the plaintiff's services and the property she contended Mr. Pegram was to devise to her.
3. The fifth reason, lettered (e), reads: "The evidence on the trial of the case does not show beyond a reasonable doubt that the alleged contract between the plaintiff and G. H. Pegram as alleged in the petition was made."
The plaintiff proved in positive, consistent, and clear language the fact of the contract and the circumstances under which it was made in minute detail, and with equal clarity and consistency showed the exact terms of the contract. The plaintiff's evidence as to this feature of the case was plain, plausible, and uncontradicted, and considered in the light of reason was sufficient to prove the contract beyond a reasonable doubt. It measured up to the standard set in the factually similar cases of Whitehead v. Dillard, 178 Ga. 714 ( 174 S.E. 244), and Matthews v. Blanos, 201 Ga. 549 ( 40 S.E.2d 715).
4. The sixth reason, lettered (f), is: "The undisputed evidence on the trial of the case proved conclusively that if the alleged contract was made it was breached, not by G. H. Pegram, but by the plaintiff herself when she refused to attend and care for G. H. Pegram as long as he lived and thereby necessitated his removal to the State of North Carolina nearly two months before his death."
This contention is based upon the testimony of two witnesses of the defendant, Mrs. Daniel and Mrs. Nicholson, nieces and heirs at law of Mr. Pegram, that the plaintiff stated to them that she would no longer care for Mr. Pegram in the event he returned to his home, and that Mrs. Daniel was accordingly obliged to carry him to her home in North Carolina where, within two months, he died. Mrs. Daniel also related that she received a letter from the plaintiff reaffirming her refusal to continue to care for Mr. Pegram. The letter was not produced, and Mrs. Daniel was uncertain as to whether she had left it in her home. Mr. Weeks, the plaintiff's husband, testifying in her behalf, denied that his wife had made the statements attributed to her, or had written the letter in question, or that it was necessary for Mrs. Daniel to carry Mr. Pegram to North Carolina.
His testimony was. "The only reason I know as to why Mr. Pegram went back to North Carolina just prior to his death and before he was able to be dismissed from the hospital was because they took him anyway. He was being well cared for in the Douglas-Coffee County Hospital. He never expressed any desire to me that he wanted to go. He was unconscious just a day or two before they took him away. He was very sick and unconscious most of the time. It was not necessary for them to take him then. My wife never told Mrs. Nicholson, Mrs. Daniel or any person that she would not care for Mr. Pegram, but insisted, at all times, that she would care for him as long as he lived. My wife never wrote any letter to any person stating that she would not look after Mr. Pegram. She never stated to anyone that she would move if Mr. Pegram came back to live in the home in Douglas, Georgia."
Contrary to the defendant's contention, there is nothing in the evidence to indicate that the witness did not have personal knowledge of the facts to which he testified. In slightly different forms, it is held in Shaw v. Jones, Newton Co., 133 Ga. 446 (3) ( 66 S.E. 240); Roughton v. Roughton, 178 Ga. 367, 371 ( 173 S.E. 673); and Metropolitan Discount Co. v. Wardlaw, 37 Ga. App. 423 ( 140 S.E. 525): "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge."
Thus, it clearly appears on the issues raised by the testimony of Mrs. Daniel and Mrs. Nicholson that there was a material conflict. Hence, their evidence did not demand a verdict in favor of the defendant.
5. Reasons 7 and 8, lettered as (g) and (h), simply undertake to suggest that the plaintiff made vague statements inconsistent with her claim of title to the property described in the petition. Considered in the most favorable light, these grounds show no more than that the defendant's evidence made an issue of fact for solution by the jury.
6. The ninth and tenth reasons, lettered (i) and (j), amount to no more than a general contention that the evidence demanded a verdict for the defendant.
According to the pronouncements of this court in Bowles v. White, 206 Ga. 433, 437 ( 57 S.E.2d 547); Mann v. Moseley, 208 Ga. 420 ( 67 S.E.2d 128); Shaw v. Miller, 215 Ga. 413 ( 110 S.E.2d 759), and Allen v. Bobo, 215 Ga. 707 ( 113 S.E.2d 138), the evidence, although as to some facets of the case in conflict, amply authorized the verdict in the plaintiff's favor.
Judgment affirmed. All the Justices concur.