Bergerson v. Mattern

• Decision Date: 25 January 1919
• Citation: 41 N.D. 404,170 N.W. 877
• Parties: BERGERSON v. MATTERN.
• Court: North Dakota Supreme Court

41 N.D. 404

170 N.W. 877

BERGERSON

v.MATTERN.

Supreme Court of North Dakota.

Dec. 31, 1918.

Rehearing Denied Jan. 25, 1919.

Syllabus by the Court.

Although the usual presumption is that services, rendered by a child to its parent, are gratuitous, in the absence of an express contract therefor, nevertheless, where the circumstances are exceptional and the character of the services rendered peculiar, a contract may be implied to pay for such services.

Appeal from District Court, Renville County; K. E. Leighton, Judge.

Action by Matilda Bergerson against Ole Mattern as administrator of the estate of Carrie Mattern, deceased. Judgment for plaintiff, and from an order denying a judgment non obstante, defendant appeals. Affirmed.Sinkler & Bryans, of Mohall, for appellant.

Ryerson & Redsater, of Mohall, for respondent.

BRONSON, J.

This is an action to recover for services rendered by the daughter to her mother during her last illness. In the trial court a verdict was returned by the jury for $1,750, and from the judgment entered thereupon and from the order of the trial court denying a motion for judgment non obstante, the defendant has appealed.

In substance, the record discloses the following facts: The plaintiff, a married woman, at her home, for a period of 2 years and 4 months, furnished her mother, who at the time of her death was aged 80 years, with exceptional nursing and care. The mother was paralyzed, practically helpless, did not respond to nature's calls, and needed the care and attention of an infant. She first came to live with her daughter in the year 1908; she remained there for some 2 years, and then went to South Dakota for some 9 months on a visit, thereafter returning to the home of the plaintiff in 1911, where she stayed until her death. On July 25, 1913, she became paralyzed, and for some two weeks until September 5, 1913, a nurse was secured for her. Thereafter, and until her death, she received the sole care and attention of her daughter.

The record amply discloses that the services performed were not only devoted and filial, but also burdensome, menial, and loathsome. The character of such services rendered showed high and efficient nursing. No express contract by the mother to pay for these services is shown. The evidence discloses the reasonable value thereof.

Although the usual presumption is that services rendered by a child to its parents are acts of kindness and gratuitous and do not create by their rendition an implied promise to pay therefor, nevertheless, where the services rendered are so exceptional and peculiar and the surrounding circumstances such as to lead to the reasonable belief of an understanding that pecuniary compensation should be made, a contract to pay therefor may be implied. Note 11 L. R. A. (N. S.) 873, 879;1 L. R. A. 819; 11 Ruling Case Law, § 233; 18 Cyc. 412; 29 Cyc. 1620; Marietta v. Marietta, 90 Iowa, 201, 57 N. W. 708;Mark v. Boardman (Ky.) 1 L. R. A. (N. S.) 819.

We are satisfied that the record presents evidence upon which an implied contract may so be found. The judgment of the trial court is affirmed.

GRACE, J., being disqualified, did not participate, W. L. NUESSLE, Judge of Sixth Judicial District, sitting in his stead.

ROBINSON, J. (concurring specially).

In this case it appears that during 2 years and 4 months,...