Babb v. Potts

• Decision Date: 09 July 1987
• Docket Number: No. 74095,74095
• Citation: 360 S.E.2d 44,183 Ga.App. 785
• Parties: BABB v. POTTS.
• Court: Georgia Court of Appeals

Page 44

360 S.E.2d 44

183 Ga.App. 785

BABB v. POTTS.

No. 74095.

Court of Appeals of Georgia.

Decided July 9, 1987.

Rehearing Denied July 24, 1987.

Certiorari Denied Sept. 8, 1987.

L. Eddie Benton, Jr., Commerce, for appellant.

Jacquelyn H. Wilkes, Jefferson, Gregory M. Perry, Commerce, for appellee.

CARLEY, Judge.

In 1978, J.D. Wilson died intestate. Appellee, who is Wilson's sister, had provided a home for her brother from 1974 until his death. Appellee furnished Wilson the mobile home in her backyard as a place for him to live, paid his utilities, bought his food, cooked his meals, performed his household chores and provided him with nursing care. Appellee never received any payment from Wilson for rent or for the goods and services that she furnished to him. In 1977, appellant, who is Wilson's only child, purchased her father's house and signed a promissory note whereby she was to make payments of $200 a month to Wilson. Wilson's house was apparently his only substantial asset and the $200 a month that he received from appellant was apparently his only source of income until shortly before his death. After Wilson's death, appellant petitioned the probate court for an order that no administration of her father's estate was necessary. See OCGA § 53-10-1. Appellee objected, asserting that she was a creditor to whom Wilson was indebted for 54 months of room and board at $500 per month. See OCGA § 53-10-2(b). After appellee filed her objection, appellant's petition for no administration was denied and she was appointed the administratrix of her father's estate.

Thereafter, this litigation was initiated when appellant, in both her individual and representative capacities, filed suit, alleging that appellee was "unlawfully holding" certain items of personal property which were owned by Wilson at the time of his death. Appellee answered and also filed a counterclaim against appellant, seeking to recover for Wilson's room and board. Only appellee's counterclaim came on for trial and it was submitted to the jury under two theories of recovery, breach of contract to make a will and quantum meruit. See Banks v. Howard, 117 Ga. 94, 96-97, 43 S.E. 438 (1902). The jury found for appellant on the contract theory, but for appellee on the quantum meruit theory. Appellant appeals from the judgment entered on the $20,000 verdict returned in favor of appellee.

1. The general grounds are enumerated. "[F]or a quantum meruit obligation to arise between siblings, there must be ... 'facts or circumstances which would authorize an inference that it was contemplated that the services would be paid for in order to recover for them.' [Cit.]" Spain v. Stubbs, 156 Ga.App. 179 181(4), 274 S.E.2d 149 (1980). "In determining that in the contemplation of the parties such services [as nursing, personal care and the like] are to be paid for, the degree of relationship between the parties, the nature of the services, including the fact that their performance is very disagreeable and obnoxious to the person performing them, that they are such as to indicate the relation of master and servant, or employer and employee between the parties, and such that the person performing them would not naturally do so without compensation and would not perform them solely for love and affection, and statements made by the person to whom the services are rendered of appreciation of the services and an intention to pay therefor, although not necessarily communicated to the person rendering the services, and the fact that the person to whom the services are rendered is financially able to pay therefor, and other facts and circumstances concerning the performance of the services, may be considered as authorizing the inference that it is in the contemplation of the parties that the services are to be paid for. [Cit.]" Humphries v. Miller, 66 Ga.App. 871, 872(1), 19 S.E.2d 321 (1942). "[I]t appears from the great weight of decisions in Georgia that, where the facts do not plainly demand an inference that the services were gratuitous, the particular facts of each case should be submitted to the jury under proper instructions as to the law as herein set forth. [Cits.]" Freeman v. Phillips, 135 Ga.App. 466, 468, 218 S.E.2d 144 (1975). The evidence in this case did not demand an inference that the services performed for Wilson by appellee were gratuitious. "There is ample testimony in the present case to authorize [the] inference [that appellee would be paid for her services to Wilson]." Spain v. Stubbs, supra at 181(4), 274 S.E.2d 149.

Appellant further asserts that there is no competent evidence authorizing a verdict in the amount of $20,000. In suits on quantum meruit, "the plaintiff is entitled to recover the ordinary and reasonable charges usually made for such services by members of the same profession, of similar standing." Marshall v. Bahnsen, 1 Ga.App. 485(2), 57 S.E. 1006 (1907). "Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which they may legitimately exercise their 'own knowledge and ideas.' [Cit.]" Daniell & Beutell v. McRee, 31 Ga.App. 210, 211(1), 120 S.E. 448 (1923). There was sufficient evidence as to the value of such services as appellee had rendered to Wilson. See generally Bailey v. Fox, 144 Ga.App. 195(1), 240 S.E.2d 737 (1977); Mitchell & Pickering v. Louis Isaacson, Inc., 139 Ga.App. 733, 734(1),...