Hudson v. Hudson
| Decision Date | 21 November 1892 |
| Citation | 16 S.E. 349,90 Ga. 581 |
| Parties | HUDSON v. HUDSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Ordinarily, where one renders in behalf of another valuable services which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same although no formal or express contract to pay has been made. Where, however, the parties sustain towards each other the relation of parent and child, and the services performed are in the nature of care and attention bestowed by a son upon an old and infirm father, no such presumption arises by operation of law. In order, therefore, to sustain a recovery by the son for such services, it must affirmatively appear either that they were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love, and affection arising out of this relation. Such foundation for a recovery would be laid when it is shown that a son, under an express contract with his father, an afflicted and infirm old man agreed to move to the father's house, nurse and wait upon him, and minister to his wants and necessities; the father agreeing on his part, in consideration of such services to be performed, to leave at his death his home place to the son; and if this contract, by reason of the fact that the old man subsequently became insane and consequently mentally incapacitated, could never be performed on the part of the father, and the son, with perfect good faith, fully met and complied with all the obligations resting upon him under the terms of the same, he could recover upon a quantum meruit, the value of his services, the quantum meruit not being the basis of his right to recover, but the measure of the amount he was entitled to receive, the same not to exceed, however, the value of the property to be given him under the contract.
2. The full amount the plaintiff would be entitled to recover for his services in such case should be reduced by what he has actually received from the property or estate of the father in excess of what was necessary to support and maintain the latter during his lifetime; and, where the plaintiff has had in his possession the entire estate of the father for many years before the latter's death, he should set forth in his declaration, and establish by such competent evidence as may be at his command, what he has received and consumed; but the mere failure to do this will not be cause for a new trial, where there is sufficient evidence before the jury to enable them to reach a fair conclusion as to what is the truth in this respect.
3. On the trial of civil cases, decisions of this court, and especially its comments upon the facts of cases, should not be read by counsel to the jury. Such a practice cannot aid the jury in ascertaining the law applicable, for this they must take from the court, nor in arriving at the truth of the case on the facts, for this they must get from the evidence.
4. An allegation that a contract was made in 1879 may be supported by proof that it was made in 1877, the contract not being in writing, and the date not being an element material in its description.
5. While a contract between a father and son cannot, after the former becomes insane, be changed or modified by an agreement between his children, the father himself, so long as he is capable of contracting in person or by agent, may change a contract previously made with the son, if the latter consents and agrees thereto.
6. The court may properly ask questions of witnesses on the stand with a view to elicit the truth of the case, but should not make remarks or comments upon them or their testimony which may tend either to magnify or diminish in the estimation of the jury the importance or effect of such testimony, either as to credibility or value.
7. It is the right of the plaintiff, when the original declaration has been lost, to establish in its stead a true copy, with all entries thereon. No copy should be so established when it is known that the same is not in all respects an accurate copy of the lost original, and all such entries, including verdicts rendered at former trials of the case. If defendant's counsel wish such verdicts concealed from the jury, a request to this effect should be made at the proper time, before the jury retire to their room.
Error from superior court, Rockdale county; R. H. CLARK, Judge.
Action by D. J. Hudson against D. N. Hudson, administrator of the estate of Charles Hudson, deceased, for services rendered deceased. Judgment for plaintiff, and defendant brings error. Reversed.
A. C. McCalla, J. N. Glenn, and A. M. Speer, for plaintiff in error.
Geo. W. Gleaton and A. M. Helms, for defendant in error.
This case was before this court at the March term, 1891, and is reported in 87 Ga. 678, 13 S.E. 583. The substantial facts involved in the litigation, as the case then appeared, are set forth in the opinion delivered. The declaration as originally filed contained an allegation that the deceased Charles Hudson, had promised to give his son, D. J. Hudson, the plaintiff, his entire property as compensation for the son's services in removing to the father's house and taking care of and waiting upon him until his death. By an amendment made before the trial resulting in the verdict and judgment under review when the case was here before, the above allegation had been stricken from the declaration; but nevertheless evidence was introduced, without objection at that trial, tending to prove that a promise had been made by the father to give the son "his property, the home place," which had been accepted and acted upon by the son. No point having been made upon the pleadings, or as to the admissibility of this evidence, this court dealt with the case as it appeared upon its substantial merits. At the last trial in the court below the declaration was in the same condition as at the former trial, and evidence was again introduced without objection to the effect indicated. Ordinarily, where services in the nature of nursing, waiting upon, and ministering to the wants and necessities of an infirm, diseased, and aged father are rendered by a son, the law presumes he did so from filial duty and affection, and not because of expected compensation for the same in money or property. Therefore, in order to authorize a recovery for such services, it must affirmatively appear either that there was an express contract to pay for the services, or that under the circumstances both the father and the son contemplated and intended that payment should be made. This we understood and laid down as the law applicable when the case was before us at the term mentioned. As between parties who sustain towards each other no relation like that existing in this case, or other relations of a similar nature, the rendition of services by one, and the acceptance thereof by the other, raises an implied promise to pay for the services, although no express contract to do so may have been made, and a recovery upon the quantum meruit is lawful and proper. In a case like this, however, proof of an express contract, or of circumstances equivalent thereto, is indispensably necessary to authorize a recovery at all. Where such a contract has been proved, and the party for whom the services were rendered by reason of insanity becomes incapable of performing literally his part of the...
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