McRae v. Britton

• Decision Date: 28 November 1977
• Docket Number: No. 3,No. 54786,54786,3
• Citation: 144 Ga.App. 340,240 S.E.2d 904
• Parties: Eula M. McRAE v. E. C. BRITTON, Executor
• Court: Georgia Court of Appeals

Page 904

240 S.E.2d 904

144 Ga.App. 340

Eula M. McRAE v. E. C. BRITTON, Executor.

No. 54786.

Court of Appeals of Georgia, Division No. 3.

Nov. 28, 1977.

Rehearing Denied Dec. 13, 1977.

Louis H. Mitchell, Columbus, for appellant.

William J. Schloth, Columbus, for appellee.

WEBB, Judge.

Eula Mae McRae filed her complaint in two counts against Ernest C. Britton as executor of the will of W. M. McRae, alleging that in November, 1971 she entered into a contract with McRae to perform certain services for him, he being a diseased and helpless alcoholic, utterly unable to take care of himself.

In Count I Mrs. McRae asserted that she agreed to come to McRae's home to nurse and look after him, clean his house, supply the food, do the cooking and all things necessary in or about the house, and that he would build her a home on his estate nearby and deed it to her along with six acres of his land located just to the west of his own home as compensation for her services and in consideration of her performing such duties. Pursuant to this contract she and her husband, Rev. R. L. McRae, a brother of W. M. McRae, went to his home, took charge of him and his house, nursing him day and night, keeping the house clean, doing his washing and laundry, buying, supplying and cooking his food, working in his tack shop and doing the most menial and often repugnant tasks including bathing and cleaning up his involuntary alcoholic, gastric and intestinal voidings, until May 1, 1975, when Dorothy M. Arant moved into his home and began sharing it with him. Shortly thereafter W. M. McRae began carrying out his part of the contract with her by building her a home on his property, repeatedly telling her that he was going to deed this home and six acres of land to her so she could be near him. This home was known and designated as 596 Lookout Loop under the system of numbering homes in Columbus. During the entire period she worked for him, W. M. McRae repeatedly promised her that he was going to deed her this property as soon as he had it surveyed for her services to him. The value of the described realty was $14,000 and the value of the services rendered by her was $14,000. W. M. McRae died testate on November 14, 1975, without having executed the promised deed to Mrs. McRae and, with the exception of a life estate in the house and one acre on which it is located devised to her husband, he devised all of his property to his "dear and trusted friend" Dorothy Arant for life with remainder over at her death to his four named grandchildren in fee simple. She prayed that the executor Ernest C. Britton be temporarily and permanently enjoined from giving his assent to this devise and that the court order him to specifically perform the contract to deed her the house and six acres in fee simple.

In Count II Mrs. McRae alleged that in November, 1971, McRae begged her and her husband, a retired minister, to leave their home in Columbus and move in with him so that she could work for him and care for him and his home more closely then she was able to from her home ten miles away. Yielding to his plea she and her husband did move to McRae's house, where she served him from November 20, 1971 to January 1, 1972 for 24 hours a day. After they moved into the house W. M. McRae had built for her she began to wait on and serve him no less than six hours a day and usually more, working in his home constantly from January 1, 1972 through April, 1975. During this time she bought him groceries with her own money and cooked and served him two full meals a day, in addition to waiting on him as though he were a child, bathing him, taking care of his clothes, cleaning them for him and cleaning his house, and also uncrating and tagging articles in his tack shop. On an average of at least once week, W. M. McRae would tell her how much he appreciated all the work and services she was rendering to him and that she would be compensated therefor, which she believed. Although no exact rate of compensation was agreed upon, a wage scale of at least $2 an hour for maid services was in effect from January 1, 1972 to May 1, 1975 for such services as she performed. However, she did far more work and rendered far more services than a maid would have because she believed all the time that he really meant to compensate her as he constantly assured her he would do. She was then over 70 years of age and had spent many of her advanced years faithfully laboring for and serving W. M. McRae.

Computed on a basis of a servant's pay of $2 an hour for six hours a day for 30 days a month the value of her services would amount to $360 a month, but she asked for only $300 a month for her work and services, as follows:

for a total of $12,000 for the three years and four months period. In addition to this she furnished and cooked two meals a day, estimated at $1 each, which would total $2,430, but since there were some days missed she only asked for $2,000 for the meals. The total of $14,000 represents a highly conservative evaluation of the worth of her services which is due and owing her and she prayed that it be paid to her from the estate of W. M. McRae under quantum meruit because the work and services received by him were not intended to be gratuitous and there was an implied promise to pay.

At the outset of the trial before a jury the court ruled that the suit would proceed on Count 2 only because the house and six acres of land was not sufficiently described for specific performance. Mrs. McRae and eleven witnesses testified at length as to her extensive services and W. M. McRae's constant avowals that he would take care of her and see that she was well recompensed. Every allegation of the complaint was repeatedly corroborated. One witness, who worked in a nursing home performing essentially the same services as Mrs. McRae had, testified that she was paid $20 a day for such a job. Other witnesses testified that during the period in question maids were paid $2 to $2.50 an hour. Mrs. McRae testified that the meals she served were worth more than $1 a plate and could not have been purchased for $1 a plate since she had grown the vegetables, cooked and served them herself, but that she was only charging and asking for $1 a meal.

At the close of this evidence the court directed a verdict in the executor's favor on the ground that Mrs. McRae had not proved the reasonable value of her services, which was an essential element to recovery on a quantum meruit basis. Mrs. McRae appeals and we reverse.

1. "Ordinarily, when one renders services . . . valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof; but this presumption does not usually arise in cases between very near relatives." Code § 3-107. We think that this presumption in Mrs. McRae's behalf was not precluded.

"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, (123 Ga. 230, 51 S.E. 300) supra ; Jackson v. Buice, 132 Ga. 51, 53, 63 S.E. 823; Howard v. Randolph, 134 Ga. 691, 68 S.E. 586; 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. . . .

"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...