Hartley v. Bohrer

• Decision Date: 06 May 1932
• Docket Number: 5771
• Citation: 52 Idaho 72,11 P.2d 616
• Parties: MARY E. HARTLEY, Respondent, v. A. D. BOHRER, Administrator of the Estate of GENNETTE HARTLEY, Deceased, Appellant
• Court: Idaho Supreme Court

11 P.2d 616

52 Idaho 72

MARY E. HARTLEY, Respondent, v. A. D. BOHRER, Administrator of the Estate of GENNETTE HARTLEY, Deceased, Appellant

No. 5771

Supreme Court of Idaho

May 6, 1932

WORK AND LABOR-FAMILY RELATIONSHIP-PRESUMPTION-BURDEN OF PROOF-WITNESSES-COMPETENCY-WAIVER OF OBJECTION-CROSS-EXAMINATION-APPEAL AND ERROR-NONPREJUDICIAL ERROR.

1. Presumption of contract of hiring or obligation to pay reasonable worth of services arises from their rendition and receipt.

2. Presumption arises that services rendered to each other by members of family living in one household are gratuitous.

3. If family relationship exists, burden is on claimant to show express or implied understanding for compensation for services.

4. Absent family relationship, remote kinship does not raise presumption that claimant's services were gratuitous.

5. Whether claimant's services were gratuitous is question of intent for jury, even where family relationship exists.

6. Presumption that claimant's services were gratuitous is rebuttable by showing express or implied agreement for compensation, even where family relationship exists.

7. Promise to compensate claimant for services arises from actual understanding or by implication from circumstances justifying inference of actual contract of hiring, even where family relationship exists.

8. Only preponderance of proof is necessary to rebut presumption that claimant's services were gratuitous, even where family relationship exists.

9. Existence of "family" relationship between daughter-in-law and mother-in-law living separately in apartment house, precluding recovery for services rendered held not shown.

10. Absent family relationship, mere relationship of daughter-in-law to mother did not create presumption that daughter's services were gratuitous.

11. Absent family relationship, proof of performance and value of daughter-in-law's services to mother created implied contract to pay.

12. Admitting, over objection, on direct examination testimony of communication with deceased, held not reversible error, where representative cross-examined beyond scope of direct examination (C. S., sec. 7936, as amended by Laws 1927, chap 51).

13. Waiver of statutory prohibition against introducing testimony of communications with deceased resulted from representative's cross-examining witness beyond scope of direct examination (C. S., sec. 7936, as amended by Laws 1927, chap. 51).

14. Disqualification of testimony respecting communications with deceased may be waived by representative (C. S., sec. 7936 as amended by Laws 1927, chap. 51).

15. Presumption obtained verdict for claimant for services to deceased was not based on evidence of communications with deceased, where other competent evidence sustained verdict (C. S., sec. 7936, as amended by Laws 1927, chap. 51).

16. Impropriety, if any, in admitting testimony of communications with deceased, held not reversible error, where fact involved was established by other competent evidence (C. S., sec 7936, as amended by Laws 1927, chap. 51).

17. Judgment held not reversible for defects in pleadings not affecting substantial rights of party complaining (C. S., sec. 6728).

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action against administrator for the value of work and labor performed for, and during the lifetime of, deceased. Judgment for plaintiff. Affirmed as modified.

Judgment affirmed, with costs to respondent.

Frank D. Ryan and J. W. Galloway, for Appellant.

"To entitle a child to recover for services rendered to his parent, however, he must allege an express contract by the parent to pay for the same, or its equivalent, since it is presumed from such a relationship that the services were rendered gratuitously." (5 Bancroft's Code Pleading, sec. 2455, p. 4509; Sargent v. Foland, 104 Ore. 296, 207 P. 349.)

"It is universally recognized that persons living together as one household, services performed for each other are presumed to be gratuitous and the law will not imply a contract to pay for the services from the mere fact that they have been rendered upon the one hand and benefits received upon the other, as in the case of strangers. Nor is it necessary that a blood relationship should exist between the parties." (Elliott on Contracts, sec. 1366; 3 Page on Contracts, 2d ed., p. 2480; 24 C. J., pp. 280-284; In re Colburn, 153 Mich. 206, 126 Am. St. 479, 116 N.W. 986, 18 L. R. A., N. S., 149.)

A claimant against an estate cannot testify in an action prosecuted against an administrator on the claim as to any communication or agreement not in writing, occurring before the death of such deceased person. (C. S., sec. 7936, as amended, 1927 Sess. Laws, p. 67; 5 Nichols' Applied Evidence, p. 4464; Maude E. Goldensmith v. Worstell, 35 Idaho 679, 208 P. 836; Thurston v. Holden, 45 Idaho 724, 265 P. 697; Hapke v. Hapke, 93 Okla. 180, 220 P. 660.)

Ed. R. Coulter, for Respondent.

The rule that wherever service is rendered and received a contract of hiring or an obligation to pay compensation will be presumed applies in cases where services are rendered by a daughter-in-law to her aged mother-in-law (such as the services performed by respondent for Gennette Hartley, deceased), in case where the daughter-in-law is not a member of the household of the deceased person. In such case it is not incumbent on the plaintiff to prove an express contract. (Allerton v. Allerton, 133 Wash. 260, 233 P. 632; Gerz's Ex'x v. Demarra's Exrs., 162 Pa. 530, 42 Am. St. 842, 29 A. 761; 28 R. C. L., secs. 12, 15, 16, pp. 677, 680, 682; 1 L. R. A., N. S., p. 880.)

LEEPER, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

The complaint charges on a quantum meruit for services rendered by plaintiff for a period of four years, to one Gennette Hartley, now deceased, at the rate of $ 25 per month, subject to an offset for rent. The defendant administrator denied and cross-complained on account of an alleged conversion of funds. The evidence proves without substantial contradiction that the plaintiff did render valuable and necessary services of various sorts to the deceased for this period of time, immediately preceding her death, except for three months thereof. The jury found for the plaintiff for the full amount claimed.

It appears that the plaintiff was a daughter-in-law of the deceased, and that she lived in one of several apartments in an apartment house owned by the latter. The deceased occupied another apartment in the same building, but their establishments were entirely separate. Each lived, slept and ate in their respective apartments and the plaintiff paid rent to the deceased during most of her occupancy. Appellant takes the position that under such circumstances an obligation to pay will not be presumed, because of the family relationship and because the parties were members of one household, and that on the contrary a presumption arose that the services were gratuitously rendered and plaintiff cannot recover except on proof of an express contract for compensation.

It is an elementary rule that, whenever services are rendered and received, a contract of hiring or an obligation to pay what they are reasonably worth will generally be presumed. (28 R. C. L. 668, sec. 3.) The scope of this rule, however, is qualified by an exception which controls if there existed between the party who rendered the services and the party who received them a kinship by blood or marriage, or if they were connected by domestic ties similar to those which are ordinarily associated with kinship. Stated generally, where services are rendered by members of a family, living in one household, to each other, the law will presume that they were gratuitous favors merely, prompted by friendship, kindness and the relationship between them. ( Crane v. Derrick, 157 Cal. 667, 109 P. 31; Ruble v. Richardson, 188 Cal. 150, 204 P. 572; Smith v. Riedele, 60 Cal.App. 551, 213 P. 281; Newbert v. McCarthy, 190 Cal. 723, 214 P. 442.)

As stated in Crane v. Derrick, supra, the degree of relationship may strengthen or diminish the implication that the services are acts of gratuitous kindness or affection according to its proximity or remoteness. The presumption of gratuitous nature applies to relatives by blood (Newbert v. McCarthy, supra; Crane v. Derrick, supra; Gopcevic v. Gopcevic, 39 Cal.App. 306, 178 P. 734; Friermuth v. Friermuth, 46 Cal. 42), marriage (Moulin v. Columbet, 22 Cal. 508; Spadoni v. Giacomazzi, 27 Cal.App. 149, 149 P. 51; Murdock v. Murdock, 7 Cal. 511), adoption (Ruble v. Richardson, supra), or even to strangers who live in the same family household and sustain the family relationship towards each other ( Gjurich v. Fieg, 164 Cal. 429, Ann. Cas. 1916B, 111, 129 P. 464). The family relationship is the important factor in raising the presumption, and if it exists the burden is upon 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 services was to be made, and to be met by payment. (28 R. C. L. 677, sec. 13.)

When parties do not live together in the family relationship however, the presumption of the gratuitous nature of the services ceases to exist, or is greatly weakened, according to the proximity of the relationship and the nature of the services performed. In such event, where the relationship is more remote than a close kinship by blood, such as that of parent and child, something more than the relationship itself must be shown in order to overcome the primary implication that a person who accepts valuable services does so on the understanding that they are to be paid for. ...