Harper v. Davis
| Decision Date | 04 April 1911 |
| Citation | 80 A. 1012,115 Md. 349 |
| Parties | HARPER v. DAVIS. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Kent County; James A. Pearce, Wm. H Adkins, and Philemon B. Hopper, Judges.
Action by Laura J. Harper against Henry Davis, administrator. From a judgment for defendant, plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, and URNER JJ.
Frank Gosnell, for appellant.
William W. Beck and Lewin W. Wickes, for appellee.
The cause of action sued on in this case was a promissory note given by Franklin H. Harper to the appellant, and the defense was want of consideration. The appellant was at the time it was given Miss Laura J. Webb, but she married Mr. Harper in October, 1904, and he died June 10, 1907. The note is as follows: She lived at Franklin H. Harper's from 1882, until the fall of 1903 when the first Mrs. Harper died. She then lived for several months at the house of Joseph W. Harper, who was a son of Franklin H. and died in December, 1903, leaving a widow and three minor children, the latter being the only heirs of Franklin H. Harper. This suit is being defended at the instance of their mother.
There are five bills of exception in the record, and, although the one called the first includes the prayers, the other exceptions were taken during the trial. We do not understand the fourth and fifth to be pressed by the appellant.
The ruling in the second need not be discussed, for if it is admissible to prove the amount of the dividend on this note which was allowed in the account of the administrator, a copy of that account, and not the testimony of the administrator, was the best evidence.
The question in the third bill of exceptions, which was excluded by the court, was: "What was the position Miss Webb occupied in the household during the time she was there, before Mrs. Harper's death?" As the witness had been permitted to state what Miss Webb did when she was there--especially as she had said that sometimes she would not be at the Harper house more than once or twice a year, and she had moved away from the neighborhood about twenty-five years before she testified--the appellant has no reason to complain of the ruling in that exception. Having thus briefly referred to those exceptions, we will now consider the rulings on the prayers, which present the important questions for our consideration.
The defendant's second prayer, which was granted, instructed the jury that "the undisputed evidence in this case shows that there was no valid consideration for the note sued on in this case, and the verdict must be for the defendant." The defendant's third was also granted, and was as follows: "The court instructs the jury that the undisputed evidence in this case shows that the plaintiff lived with the family of the defendant's intestate, Franklin H. Harper, as a member of the family, and that the evidence in this case failed to show a design on the plaintiff's part at the time of the rendition of the services testified to, to charge for same and an expectation on the part of Franklin H. Harper to pay for the same, and the undisputed evidence in the case further shows that the consideration for the note sued on was the services rendered by the plaintiff to the defendant's intestate as testified to, and the verdict must be for the defendant." The plaintiff filed a special exception to the granting of the third prayer, alleging that there was no evidence that the plaintiff did not expect to charge for the services rendered, and there was no evidence that there was no design on the part of the defendant's intestate to pay for said services.
It is admitted that the plaintiff was not related to Mr. Harper, and the evidence abundantly shows that during the 21 years she lived at his house, in the lifetime of the first Mrs. Harper, she performed many valuable services, especially during the latter part of the first Mrs. Harper's life, as she was an invalid and not only could not do as much herself as she formerly did, but was in such condition as to require a great deal of nursing and care by the appellant. The theory of the appellee is that, although the appellant was not a blood relation, she was treated as a member of the family, and when the services were rendered there was no intention on her part to charge, or on that of Mr. Harper to pay for them, and that hence she cannot recover. There have been a number of decisions by this court involving the general principles applicable to cases of this character, but this case presents some other questions.
The rule announced in Bantz v. Bantz, 52 Md. 693, that, "in order to justify a claim for services being allowed against a decedent, there must have been a design, at the time of the rendition, to charge, and an expectation on the part of the recipient to pay for the services," etc., has been declared by this court in several cases to apply only when such claim is made "by a member of the family of the decedent" (Bixler v. Sellman, 77 Md. 496, 27 A. 139; Wallace v. Schaub, 81 Md. 598, 32 A. 324; Gill v. Staylor, 93 Md. 472, 49 A. 650); the foundation for the rule being that when services are rendered by a member of the family a presumption of law arises that they were gratuitous, and hence the burden is on the claimant to relieve himself of that presumption by showing that there was "an express or implied understanding between the parties that a charge for the services was to be made, and to be met by payment." On the other hand, when no such relation exists between the parties as to bring the claimant within that rule, the law implies a promise to pay for services rendered and accepted, and the burden is on the party resisting the payment to show that no charge was to be made, if the rendition and acceptance of the services are proven. The question has, therefore, frequently arisen as to who is "a member of the family" within the rule, and the decisions in the different jurisdictions have not been wholly harmonious, as will be seen by reference to the note to Hodge v. Hodge, 11 L. R. A. (N. S.) 873. In this state we have had some cases in which it was held that the claimants were not "members of the family" within the rule, although they lived in the same house. In Wallace v. Schaub, supra, the decedent had boarded with the plaintiff for many years at a fixed price per week for board and lodging, but in a suit for services as a nurse she was allowed to recover, and it was said the decedent was not a member of the plaintiff's family. In Gill v. Staylor, supra, it was held that the nephew of the decedent's husband was not a member of her family so as to raise the presumption that services rendered by him for her were intended to be gratuitous, although he received his board from the decedent but no money for about thirteen years.
But in Pearre v. Smith, 110 Md. 531, 73 A. 141, this court, through Judge Schmucker held that, although the plaintiff was not a blood relation of the decedent, she was a member of the family within the rule, and that a prayer should have been granted which asked the court to instruct the jury "that the undisputed evidence showed that the plaintiff lived with the defendant's testator as a member of the family, and that as it failed to show a design on the plaintiff's part at the time of the rendition of the services to charge for the same, or an expectation on the part of the testator to pay for them, their verdict must be for the defendant." It is true that in that case the court also held that the testator was not the responsible head of the family and the services were rendered to his sister and not the testator, but the other defense was distinctly raised and passed on by the court. The case of Gill v. Staylor was distinguished, and Judge Schmucker said: In Wallace v. Schaub the conditions were also very different from what they were in Pearre v. Smith, as there the decedent simply boarded with the plaintiff, and the reason for the rule between members of the family was not applicable, as there could be no presumption that such services as were the basis of that suit were gratuitous merely because the decedent boarded with the plaintiff.
In the note to Hodge v. Hodge, 11 L. R. A. (N. S.) 887, it is said: "Even in cases where the person who rendered and the person who received the services in question were not related by either blood or marriage, the implication of a promise to pay compensation will, as a general rule, be negatived, if it appears that at the time when the services were rendered there existed between them a domestic relationship the...
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