Doughty v. Thornton

• Decision Date: 30 October 1928
• Citation: 151 Va. 785
• Court: Virginia Supreme Court
• Parties: GEORGE L. DOUGHTY, ADMINISTRATOR OF JOSEPH HARGIS, DECEASED, v. HARVEY THORNTON AND ELIZABETH THORNTON.

Page 785

151 Va. 785

GEORGE L. DOUGHTY, ADMINISTRATOR OF JOSEPH HARGIS, DECEASED, v. HARVEY THORNTON AND ELIZABETH THORNTON.

Supreme Court of Virginia, Richmond.

October 30, 1928.

Holt, J., having taken his sear on the Supreme Court of Appeals did not sit in this case.

1. WITNESSES — Corroboration — Promise to Pay Plaintiffs for their Services in Taking Care of Defendant's Decedent — Case at Bar. — In the instant case, an action to recover for services rendered by plaintiffs in taking care of defendant's decedent in the last years of his life, the motion for judgment did not set out an express contract, though the evidence attempted to establish a direct promise to pay plaintiffs for the services rendered. This promise was testified to by the plaintiffs, but no other witnesses heard the agreement and it was contended that under section 6209 of the Code of 1919 no verdict could be sustained against defendant unless the evidence of plaintiffs was corroborated by independent testimony. There was abundant evidence that plaintiffs left their home and lived with decedent, and cared for decedent until his death. This act on their part was equally consistent with their change of domocile under an express promise not to receive any compensation. It did not tend of its own strength and independently to support the position taken by plaintiffs that decedent promised to pay them for their services.

2. PARENT AND CHILD — Implied Promise of Parent to Pay for Services of Child. — A recovery cannot be had upon an implied promise to pay for services rendered, where the parties stand in loco parentis.

3. PARENT AND CHILD — Stepchild — Whether Stepfather Stands in Loco Parentis to Stepchild Dependent upon the Particular Facts. — Whether a stepchild bears such a relation to his stepfather as to place the latter in loco parentis, is dependent upon the facts of each particular case.

4. PARENT AND CHILD — Stepchild — Whether Stepfather Stands in Loco Parentis to Stepchild Dependent upon the Particular Facts. — A stepfather does not merely by reason of the relation, stand in loco parentis to his stepchild, but where the stepfather receives the stepchild into his family and treats it as a member thereof, he stands in the place of the natural parent, and the reciprocal rights, duties, and obligations of parent and child continue, so long as such relation continues.

5. PARENT AND CHILD — Stepchild — Implied Promise of Stepfather to Pay for Services of Stepson — Case at Bar. — In the instant case, an action by husband and wife for services rendered in taking care of defendant's decedent in the last years of his life, the husband was the stepchild of the decedent. The husband came into the home of his decedent at the age of twelve years, and from that time until his majority or marriage, lived in the home of his stepfather and was treated as a member of the family. After his marriage the husband left his stepfather's home and thereafter the two families dealt with each other upon a business basis, and upon equal terms. After the death of the stepchild's mother, neither the stepfather nor the stepson was under any obligation to the other. Such were the existing circumstances when the decedent induced plaintiffs to leave their home and come and live with him and take care of him until his death.

Held: That when plaintiffs came back to decedent's home they owed him no legal duty, and plaintiffs might sustain their action for services rendered upon an implied promise to pay for the same.

6. PARENT AND CHILD — Stepchild — Mutual Obligations. — Stepchildren as such, are not within the letter or the reason of the law that fixes mutual obligations upon parent and child or other near relatives, and therefore no obligations are created between the stepfather and the stepchild beyond such as flow from the acts of the stepfather during the dependency of the child.

7. PARENT AND CHILD — Action by Stepchild for Services Rendered in Taking Care of His Stepfather — Corroboration of Express Promise to Pay for Services — Recovery on Implied Promise. — The instant case was an action against an administrator for services rendered in taking care of his decedent in the last years of his life by plaintiffs, a stepson of the decedent and the wife of the stepson. Plaintiffs testified to an express promise to pay for the services. But whether the express promise was corroborated by independent testimony as required by section 6209 of the Code of 1919, was not decisive of plaintiff's right to recover. It was not essential to the recovery of plaintiffs that they would prove an express promise to pay. Certainly not as to the wife who bore no relation to decedent, nor as to the husband, who for years had been the head of his own family, receiving no aid from his stepfather, nor hope of any, as the stepfather had three children living at the time of his death.

8. PARENT AND CHILD — Stepchild — Verdict for Plaintiffs in Action by Stepchildren for Taking Care of their Stepfather not Disturbed — Instructions not Authorizing the Verdict — Case at Bar. — The instant case was an action by plaintiffs for taking care of their stepfather in the last years of his life. Under the instructions of the court it might be argued that the jury were not authorized to return a verdict in favor of plaintiffs, but as they might properly have been instrued on the theory of an implied promise to pay for the services rendered, and as they returned a verdict for the plaintiffs on the theory that the plaintiffs were entitled to the amount of compensation named in the verdict, the jury having found for the plaintiffs and the trial judge having overruled a motion for a new trial, the appellate court did not find from the evidence that plaintiffs' case was so without support that it would be justified in overruling the decision of the trial court upon the motion to set aside the verdict.

Error to a judgment of the Circuit Court of Accomac county, in a proceeding by motion for a judgment for money. Judgment for plaintiffs. Defendant assigns error.

The opinion states the case.

George L. Doughty and Benjamin T. Gunter, for the plaintiff in error.

J. Brooks Mapp, for the defendants in error.

MCLEMORE, J., delivered the opinion of the court.

Writ of error to a judgment of the Circuit Court of Accomac county rendered in favor of defendants in error, against the estate of Joseph Hargis, deceased.

The defendants in error, who will hereafter be referred to as plaintiffs, proceeded by motion in the circuit court to establish a debt against the estate of the said Joseph Hargis, deceased, which resulted in a verdict and judgment for $800.00.

The notice of motion is in the following words and figures, viz:

"To George L. Doughty, administrator of Joseph Hargis, deceased:

"You are hereby notified that we shall on the 6th day of December, 1926, that being the first day of the term, move the Circuit Court for the county of Accomac, Virginia, for a judgment against you, as administrator, for the sum of twelve hundred and two dollars ($1,202.00), with interest thereon from December 6, 1926, until paid and costs; the same being due to us by you, as administrator of the estate of Joseph Hargis, deceased, for boarding, waiting on and care of said Joseph Hargis during the three years, three months and seventeen days prior to his death, at $1.00 per day. The indebtedness covered by this suit is not taxable under the statute law of the State of Virginia.

"Given under our hands this the 22nd day of November, 1926.

"HARVEY THORNTON and

"ELIZABETH THORNTON,

"By Counsel."

Joseph Hargis, a resident of Wachapreague, in the county of Accomac, was twice married, and his second wife, who was the widow Thornton at the time of their marriage, had one boy, Harvey Thornton, then about twelve years of age. Hargis had three living children, the issue of his first marriage, who were living apart from him.

At the time of the Hargis-Thornton marriage young Harvey Thornton came with his mother, now Mrs. Hargis, into the home where he remained until grown. He was practically accepted as a member of the family, and the relations between him and his stepfather were, and remained, cordial up to the death of Hargis.

Mrs. Hargis, the mother of Harvey Thornton, predeceased her husband something over three years, her husband being about seventy years of age at the time of her death.

Several years prior to the death of his mother, Harvey Thornton had married and at first took his wife to the Hargis home where they remained for about six months, during which time the two families shared equally the "grub bill." The Thorntons then left the stepfather's home and lived to themselves for a year, during which period a child was born to the union; they again went back to the Hargis residence where they remained for a year or more, sharing equally the living...