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District Court of Appeal, Second District, Division 1, California.

Margaret H. PALMER, Plaintiff and Respondent, v. Frances V. GREGG and Merle Doherty, as co-administrators of the Estate of De Neison Smith, Deceased, Defendants and Appellants.

Civ. 29812.

Decided: June 21, 1966

Thomas P. Cruce and Myron E. Harpole, Los Angeles, for appellants. J.E. Simpson, Los Angeles, for respondent.

Her claims therefor having been rejected by the defendants-administrators, plaintiff sued to recover the reasonable value of nursing and other services rendered decedent prior to death, at his special instance and request (First Cause of Action) and, following such death, the reasonable value of services performed by her as “caretaker” of decedent's property at the request of defendants' attorney (Second Cause of Action).   Defendants cross-complained for a money judgment representing the value of property allegedly embezzled and unreturned by Mrs. Palmer.   In a non-jury trial, the court found for plaintiff on each cause of action of the complainant, awarding interest on the sums determined to be the reasonable value of the services in suit, and against defendants on their cross-complaint.   Defendants appeal from the judgment.

 Since one of the assignments of error challenges the finding that plaintiff was on duty 24 hours per day, we briefly summarize the evidence of such employment;  in such recital, under settled rules, “[a]ll of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.”  (Estate of Teel, 25 Cal.2d 520, 527, 154 P.2d 384, 388.)   In early August of 1960, decedent then 82 years of age and living alone in his two-story house on South Norton Avenue, Los Angeles, became ill.   He telephoned Mrs. Palmer, a friend of many years, at her home in Palm Springs requesting her to come to Los Angeles and take care of him.  (Evidence of the above call, and other matters hereinafter aforementioned, was forthcoming from persons other than the plaintiff who ordinarily would have been incompetent to testify thereto under the “dead man's statute.”  (Code Civ.Proc., § 1880, subd. (3).)1  Thereafter she left immediately for Los Angeles and took up residence at decedent's home where she remained until his death on June 10, 1961.   Upon arrival at the Norton Avenue address, plaintiff drove decedent to the office of Dr. Bolotin, specializing in internal medicine and cardiology, who diagnosed decedent's condition as heart failure.   A regimine of bed rest, diet, drugs and medicines was prescribed by Dr. Bolotin.   He also recommended that decedent be hospitalized;  the latter refused, however, stating that he had plaintiff to take care of him in his own home and would get just as good care as that obtainable in a hospital.   Subsequently, for almost two months, decedent was restricted to the second floor of his home, being confined to be for a substantial portion of that period.   He also consulted Dr. Cerini, a specialist in cardiovascular diseases, who treated decedent at latter's home;  he likewise suggested hospitalization but received the same answer as Dr. Bolotin.   Both physicians testified to plaintiff's services as a practical nurse and her constant communication with them over the succeeding months;  several other witnesses, including neighbors living next door, frequently visited Mr. Smith and described the nature and extent of plaintiff's numerous duties on those occasions.

Cumulatively the above testimony amply warranted the finding (No. 7), which determination is not challenged by defendants, that from August 8, 1960, to June 10, 1961, and at his special instance and request, plaintiff “rendered and performed for decedent personal services consisting of acting as a practical nurse, housekeeping, marketing, acting as chauffeur for decedent, administering drugs and medicines pursuant to instructions from decedent's doctors, watering the yard, doing the laundry, and caring for and training decedent's dog.   During said period of time plaintiff was in frequent communication with Doctors Bolotin and Cerini with respect to decedent's condition and his care and treatment.   In acting as chauffeur for decedent in driving him to the office of doctors, on business trips and in doing the shopping and marketing, plaintiff used her own automobile.   Decedent's license to operate a motor vehicle had been revoked.   During the said period * * * plaintiff was the only person who performed any of the above described services for decedent.   On the occasions when plaintiff was absent from decedent's home for short periods of time she arranged for someone to stay with decedent.” 2  The trial court fixed the reasonable value of the above services at $7,344.00;  it further determined that plaintiff had incurred automobile expenses of $284.49, and gardening expenses incident to the maintenance of her Palm Springs home in the sum of $400.00 (at the rate of $40.00 per month).   On the first cause of action, therefore, plaintiff was given judgment in the total sum of $8,028.49, with interest from December 11, 1961, the date of the claim's presentation.

With respect to the second cause of action, there was evidence that immediately after decedent's death, his attorney (who later represented defendants) came to decedent's home and requested plaintiff to remain as caretaker;  he also told her that she would be compensated for such services.   Plaintiff accordingly remained there until September of 1961, rendering the services requested with the knowledge of defendants.   For these services the court made an award of $601.04 and also ordered that plaintiff be reimbursed of $117.04 for gardening expenses at her Palm Springs residence, or a total sum of $718.08;  interest was likewise allowed on this latter total from December 11, 1961.

 It is contended by defendants (as to the First Cause of Action) that the court erroneously found that plaintiff was on duty twenty-four hours per day and consequently further erred in finding that the reasonable value of such services was $7,344.00;  they argue that any sum in excess of $1,320.00 in unsupported by the evidence received below.   This latter sum ($1,320.00) is arrived at by reliance on Orders Nos. 4–57 and 5–57, Industrial Welfare Commission (Title 8, Cal.Admin.Code, §§ 11345 and 11380) which provide that no woman shall be employed in certain occupations more than eight (8) hours in any one day nor more than six (6) days in any one week—she may be employed seven (7) days in one week when the total hours of employment do not exceed thirty (30) hours during that week;  since, as defendants asserts, the rate of $1.00 per hour was adopted by the trial court, plaintiff could thus have lawfully worked only 1320 hours and was accordingly entitled to only $1,320.00.   Furthermore, even in the absence of the above provisions, section 1351 of the Labor Code forbade the employment of plaintiff for more than 48 hours in one week or a total of 2112 hours for 44 weeks she worked for decedent;  at the rate of $1.00 per hour, plaintiff would thus have been entitled to $2,112.00 and no more.   The instant contention is lacking in merit.   In the first place, no reference is made in the pretrial statements, and therefore in the pretrial order, to the Industrial Welfare orders or the provisions of the Labor Code;  their applicability was first raised in certain counterfindings proposed by defendants after the court had orally announced its decision.   But “The pre-trial orde[r] limited the issues to be tried.”  (City of Los Angeles v. County of Mono, 51 Cal.2d 843, 847, 337 P.2d 465, 468.)   As further stated in Baird v. Hodson, 161 Cal.App.2d 687, 691, 327 P.2d 215, 218, quoting from an Indiana case, “ ‘[T]he parties chose their weapons in the court below.   They agreed that a decision of this case properly turned on the answers to the questions above set out.   That was the case presented and tried below, and that is the case we are reviewing.   By its judgment the court below answered the questions submitted.   It was not required to go further.   Nor may we create new issues and decide this case on an entirely new and different theory.   The subsequent course of an action is controlled by the agreements made at pre-trial conference so long as they remain unmodified.’ ”

 Although defendants do not discuss the point, it is nevertheless true that the question of illegality may be raised for the first time on appeal.   That being so, they were not without some standing to urge the present claim even after all the evidence was in.   Plaintiff, it is suggested, worked longer hours than is warranted by law;  but decedent also violated the law by permitting her to do so.   However, since the various provisions in question were designed to protect the employee, not the employer, plaintiff may not be considered to have been in pari delicto with decedent who was in violation thereof.   Almost apposite is Bartholomew v. Heyman Properties, 132 Cal.App.2d Supp. 889, 281 P.2d 921, where the plaintiff female was required to work 86 hours per week for wages based on less then the number of hours.   Affirming an award for the deficiency, the reviewing court invoked section 1194, Labor Code, providing that a woman or minor paid less than the minimum wage may recover the unpaid amount.   The court noted that one of the primary purposes of the legislation was the protection of the employee, and that the only reasonable interpretation of such legislation was the “the employee shall be paid at least the minimum wage ‘for all hours worked.’ ”  (p. 895, 281 P.2d p. 925.)   To hold otherwise, the court concluded, would unjustly enrich the employer for plaintiff's overtime labor.   The same unjust enrichment would here result if defendants' contentions were sustained.

 We come now to the complaint that the evidence did not support the finding that plaintiff was “on duty” twenty four hours per day in caring for decedent;  the court did not find, as defendants seem to suggest, that plaintiff was actually physically working each hour of the day for the entire period in suit.   As will hereinafter be shown, the trial judge may take into consideration his own knowledge of value in fixing the compensation for services of a nontechnical nature such as here involved;  for the same reason, he may likewise determine the extent of services performed by a practical nurse, such as plaintiff, who was “on call” at any time, day or night.   In this latter regard, see Burgermeister v. Wells Fargo Bank etc. CO., 191 Cal.App.2d 624, 630, 13 Cal.Rptr. 123.   According to the Practical Nurses' Registry for Los Angeles, whose registrar testified to such fact, plaintiff's employment by the decedent was classified as “resident duty”—the established rate therefor being $22.00 per day.   Being on resident duty, she was subject to call—“liable to be called upon at any moment, and not at liberty to go away.”  (Missouri , K. & T.R. Co. of Texas v. United States, 231 U.S. 112, 119 [34 S.Ct. 26, 27, 58 L.Ed. 144].)  Under any reasonable view of the circumstances at bar, the evidence sufficiently supports the finding.

 Having found the extent of plaintiff's employment, the trial court in its sound discretion could fix the reasonable value of plaintiff's services (Punton v. Sapp Bros. Construction Co., 143 Cal.App.2d 696, 601, 300 P.2d 271), and in the exercise of such discretion it was empowered to draw on its own knowledge of the worth of such employment.  (Meredith v. Marks, 212 Cal.App.2d 265, 273, 47 Cal.Rptr. 737.)   The court did not find as to the value per hour of plaintiff's services—nor was it required to do so.  (Johns v. Coleman, 176 Cal.App.2d 778, 784, 1 Cal.Rptr. 784.)   It did, however, find as an ultimate fact that the value of all services rendered was $7,344.00;  and while the award was perhaps a generous one (although not unsupportable as a matter of law), the court accomplished its duty to the parties in finding such ultimate fact.  (See Johns v. Coleman, supra.)

 While they do not challenge the determination that plaintiff's services as caretaker (Second Cause of Action) were reasonably worth the value fixed by the court, defendants contend that they were erroneously ordered to reimburse plaintiff for the “expenses” she incurred for automobile maintenance (First Cause of Action) and gardener's services at her Palm Springs residence (both causes of action).   Initially, it is incorrectly asserted that there was no evidence that plaintiff actually expended the sums claimed for garden maintenance;  to the contrary, she was asked if “anything [had] been paid to you * * * on account of reimbursement to you for maintenance and gardener expenses at your home in Palm Springs * * * from August 8, 1960 to June 10, 1961,” and the witness answered, “No, sir, I haven't been paid anything.”  (Rep.Tr. p. 272.)   There is similar testimony as to gardener's services after June 10.  (Rep.Tr. p. 272.)   There is similar testimony as to gardener's services after June 20.  (Rep.Tr. p. 264.) 3  Notwithstanding such testimony, defendants nevertheless argue that on a complaint for quantum meruit (as here) recovery may be had for reasonable value of the services or damages, but not for both.   No California case is cited for the above proposition, defendants relying on two texts and a treatment of the topic in 98 C.J.S. Work & Labor § 66(3), p. 825.   The discussion last mentioned, however, comes under the heading “Invalid or Unenforceable Contract”;  but, for reasons heretofore appearing, the obligation at bar may not be so classified.   More pertinent to our case, and controlling, is the following statement from the same work (98 C.J.S Worker § 67a, p. 833):  “Where suit is brought on the basis of a contract implied with or without existence of a special contract, as discussed supra §§ 65–66, plaintiff may, as on quantum meruit, recover the reasonable value of actual and necessary expenses * * *.”   Cited is Harrington v. Hoffmeyer, 19 Cal.App.2d 452, 65 P.2d 931, which holds that such expenses may be recovered upon a showing that the amount in question had actually been expended.   Independent research reveals no California case not in accord.

 Defendants' final point states that it was error to allow interest on the principal sum involved in both counts from the date that each claim was presented (December 11, 1961).   This contention, in our opinion, must be upheld.   Plaintiff properly complains that the decisions dealing with the allowability or otherwise of interest on creditors' claims (in probate matters) are apparently in conflict.   Thus, Luther v. Foster, 150 Cal.App.2d 725, 310 P.2d 655, squarely supports her position;  however, a hearing in the Supreme Court was never sought, and no mention of Luther is made by that court in Hilton v. McNitt, 49 Cal.2d 79, 315 P.2d 1, upon which defendants rely.   Hilton holds that a non-interest bearing debt of a decedent draws interest only from the date his legal representative was ordered to pay such claim.   It seems settled that a quantum meruit claim, such as the one at bar, is unliquidated and does not bear interest until the time of judgment;  this because the value of the services can be established only by evidence in court.  (Swafford v. Goodman, 115 Cal.App.2d 105, 110, 251 P.2d 680;  Crocker v. Crocker First Nat. Bank, 60 Cal.App.2d 725, 731, 141 P.2d 482.)   The same is also true of the items for automobile and garden maintenance.

It further appears that the claims presented to defendants made no mention of interest.   In Estate of Adams, 174 Cal.App.2d 505, 345 P.2d 106 (hearing by Supreme Court denied), the court held that the failure to do so was fatal;  it concluded, therefore, that the creditor was entitled to interest only from the date of judgment.   While Adams is cited by defendants, plaintiff makes no reference thereto in her brief;  instead, she seeks to distinguish Hilton and other contrary decisions on the basis that they are involved general claims against an estate, whereas her claim occupies a prior or preferred status for payment since it relates to services rendered during the decedent's last illness.  (Prob.Code, § 950.)   In the absence of any California authority, and none is furnished, we do not feel that the circumstances here call for the drawing of any such fine distinction.

It is argued by plaintiff that the disallowance of interest from the date of presentation will encourage personal representatives to reject claims, thus compelling litigation;  thereafter, the only loss the estate would sustain would be court costs in an amount generally less than the amount of interest which should have been paid.   Perhaps the answer to the above complaint is found in the Adams case:  “While we appreciate the hardships suffered by respondent creditor by the long delay in the payment of this indebtedness and while we realize that the resulting equitable considerations undoubtedly motivated the ruling of the trial court, we are confronted with fixed precedents of probate procedure.”  (Estate of Adams, supra, 174 Cal.App.2d 505, 508–509, 345 P.2d 106, 108:)

The judgment is modified to provide that the principal sum in each cause of action will bear interest from the date of entry of judgment, to-wit, November 25, 1964;  as thus modified, the judgment is affirmed.   The parties will bear their own costs on appeal.


1.   The subject statute covers matters occurring “before the death of such deceased person” (First Cause of Action);  the Second Cause of Action, as shown above, related to facts which took place after Mr. Smith's death.   But since defendants had filed a cross-complaint, waiver of the statute attached to all witnesses (including plaintiff) defending against such counterpleading (Bruce v. Ullery, 58 Cal.2d 702, 25 Cal.Rptr. 841, 375 P.2d 833) when, as in this case, their testimony would tend to reduce or cancel the monetary obligations asserted by defendants

2.   The court expressly found that when plaintiff was physically absent “she went to Palm Springs and returned to decedent's home early on the following morning.”

3.   PLaintiff was not, of course, incompetent to testify to such matters.  (See footnote 1, supra.)

LILLIE, Justice.

WOOD, P.J., and FOURT, J., concur.