Cowsert v. Nunnally, 41788
| Decision Date | 25 February 1966 |
| Docket Number | No. 41788,No. 2,41788,2 |
| Citation | 113 Ga.App. 200,147 S.E.2d 680 |
| Parties | T. C. COWESERT, Administrator, v. Clint NUNNALLY |
| Court | Georgia Court of Appeals |
William L. Preston, Terrell W. Benton, Jr., Monroe, for appellant.
Thomas W. Ridgway, Monroe, for appellee.
Syllabus Opinion by the Court
The defendant administrator appeals from a judgment for the plaintiff, one of the heirs at law of the deceased, on her claim against the estate. Held:
1. The plaintiff's claim, upon which the jury awarded her a verdict, rested upon an alleged agreement between the plaintiff and her deceased mother under which the plaintiff rendred personal services to her mother and the mother promised to compensate the plaintiff for the services. The deceased cannot now speak for herself, and neither can the plaintiff. Code § 38-1603(1). But, as it usually happens in litigated cases, there was evidence that third persons, eligible to testify, heard the deceased commit herself to pay the plaintiff for her services.
Such evidence is easily fabricated and hard to disprove because the alleged promisor is always dead when the question arises. It is also the natural resort of unscrupulous persons who wish to despoil the estates of decedents. However, the law in this State is that a claim by a child for services rendered to a deceased parent may be supported by evidence of facts and circumstances from which it affirmatively appears that both parties intended that compensation for the services should be made, and which negatives the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of this relation. From such evidence a promise on the part of the party receiving the services to pay for them may be implied. Phinazee v. Bunn, 123 Ga. 230, 231, 51 S.E. 300.
Our courts applying this rule have repeatedly held that the circumstances in evidence presented a question for the jury to determine whether it was the intention of both parties that compensation be made, or on the contrary, that the services were performed for a deceased out of a sense of duty arising out of a family relationship. Murrell v. Studstill, 104 Ga. 604, 608, 30 S.E. 750; Harrison v. Harrison, 129 Ga. 284, 58 S.E. 831; Phinazee v. Bunn, supra; Jackson v. Buice, 132 Ga. 51, 53, 63 S.E. 823; Howard v. Randolph, 134 Ga. 691, 68 S.E. 586, 29 L.R.A.,N.S., 294; Wall v. Wall, 15 Ga.App. 156, 161, 82 S.E. 791; Dyer v. Beasley, 31 Ga.App. 276, 120 S.E. 638; Edwards v. Smith, 42 Ga.App. 730, 157 S.E. 348; Tatum v. Moss, 58 Ga.App. 434, 198 S.E. 814; Humphries v. Miller, 66 Ga.App. 871, 19 S.E.2d 321; cf. Hudson v. Hudson, 90 Ga. 581, 16 S.E. 349. There have been a few decisions that the evidence before the trial court was insufficient to show an intention on the part of both parties that the services were performed and accepted with the intention of receiving and paying compensation. O'Kelly v. Faulkner, 92 Ga. 521, 17 S.E. 847; Grubbs v. Hamby, 34 Ga.App. 774, 131 S.E. 189; McElroy v. Lambert, 56 Ga.App. 127, 192 S.E. 258; Matthews v. McCorkle, 111 Ga.App. 310, 141 S.E. 597.
In the present case, as in the cases cited above where a recovery for services was held authorized, there was presented evidence of statements by the deceased expressing her intention to compensate the plaintiff for her services, evidence that the plaintiff's performance was with the expectation that she would be paid, evidence as to the nature and value of the services rendered, and of the physical and financial condition of the...
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