Miller v. Miller

• Decision Date: 10 March 1911
• Docket Number: 7,077
• Citation: 94 N.E. 243,47 Ind.App. 239
• Parties: MILLER, ADMINISTRATOR, v. MILLER
• Court: Indiana Appellate Court

94 N.E. 243

47 Ind.App. 239

MILLER, ADMINISTRATOR, v. MILLER

No. 7,077

Court of Appeals of Indiana

March 10, 1911

From Elkhart Superior Court; Vernon W. VanFleet, Judge.

Action by Ella B. Miller against Andrew J. Miller, as administrator of the estate of Elizabeth Miller, deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

Lloyd L. Burris and E. A. Dausman, for appellant.

Benjamin F. Deahl, Anthony Deahl, Ray Deahl, Elam & Fesler and Fitzpatrick & Fitzpatrick, for appellee.

OPINION

MYERS, C. J.

Appellee filed a claim against the estate of Elizabeth Miller deceased, for services rendered to decedent. After the claim was refused by the administrator, it was transferred to the trial docket of the Elkhart Circuit Court. The venue was changed to the Elkhart Superior Court, where a trial was had before a jury, resulting in a verdict and judgment in favor of appellee.

Appellant's motion for a new trial was overruled, and error is here assigned on that ruling. Appellant, in support of his motion for a new trial, insists that the verdict is not sustained by the evidence and is contrary to law. He also insists that the court erred in giving and in refusing to give certain instructions to the jury, and in admitting certain evidence.

It is the theory of appellant that the evidence clearly failed to show an express contract between decedent and appellee to pay for such services. On appeal the presumption is in favor of the proceedings and judgment of the trial court, and where the evidence is challenged, as being insufficient to support the verdict, such contention will be sustained only if after a consideration of all the evidence most favorable to the verdict there remains an essential element unsupported by any evidence. Southern Ind. R. Co. v. Baker (1906), 37 Ind.App. 405, 77 N.E. 64; Knoefel v Atkins (1907), 40 Ind.App. 428, 81 N.E. 600; Jeffries v. Orndorf (1909), 44 Ind.App. 225, 88 N.E. 958; Ohio Valley Buggy Co. v. Anderson Forging Co. (1907), 168 Ind. 593, 81 N.E. 574.

It appears that in August, 1895, the husband of decedent died, leaving decedent, this claimant, a daughter, and one son, all of whom resided and continued to reside in the family dwelling until the year 1900, when the son married and left the mother and claimant in charge of the farm. Soon after the death of the father, a third person offered the daughter a position, which she refused, at the request of the mother, the latter saying: "She [the daughter] must stay with me, and she will be paid; I cannot stay alone; John is at home, but he will not stay with me at night." To this request of the mother, claimant replied that if she wanted her to stay and claimant could have her pay, she would stay. Decedent many times afterward, and within a few months before her death, in the presence of claimant, said to third persons that her daughter should be well paid for her services. In view of the evidence to which we have referred, the jury might reasonably have concluded that the mother fully expected claimant to be paid for her services, and that claimant rendered the services for which claim is made expecting to be paid therefor. Claimant remained with her mother until the latter's death, and there is an abundance of evidence in the record to show that decedent, for at least two years prior to her death, required a great amount of care and attention, which, together with other work, was well performed by claimant. At the time of the trial--January 22, 1908--claimant was forty-four years of age. Decedent died at the age of seventy-five from the effects of cancer so located on her person that she was unable to dress and treat it herself, and this service was performed by claimant. While there is evidence in the record of admissions on the part of claimant which might reasonably indicate that she was not expecting pay for the services rendered her mother, yet these alleged admissions are not such as will authorize this court to affirm that there is no evidence to support the necessary undertaking or justify the inference that compensation was not intended and expected.

The evidence before us is entirely different from that in the cases of McClure v. Lenz (1907), 40 Ind.App. 56, 80 N.E. 988, Waecheter v. Walters (1908), 41 Ind.App. 408, 84 N.E. 22, and Shutts v. Franke (1908), 42 Ind.App. 275, 85 N.E. 781, where the evidence clearly showed that the services performed by the child for the parent were not from any expectation of financial benefit, but from a motive of love for the parent.

Appellant insists that instructions two, three, four and five, given by the court to the jury, were all erroneous and harmful. That part of instruction two claimed to be erroneous reads as follows: "If you find that the services were rendered as alleged, in order that there may be an obligation to pay wages for them, there must have been either an express promise by decedent to pay for them or they must have been rendered under such circumstances as that the law will imply such an obligation."

This instruction was followed by instruction three, which defined an implied obligation as between strangers, and continued as follows: "But where the person rendering services and the person for whom they are rendered are members of a family living together as one household, and the service appertains to such condition, an implication of a promise on the part of the recipient to pay for the services does not arise from the mere rendition and acceptance thereof, but the services will be presumed to be gratuitous and to be bestowed and rendered in the performance of duty or the manifestation of kindly regard for which remuneration was not contemplated; and to support a recovery therefor, the burden will be on the plaintiff to show either an express contract for compensation, or such circumstances of the services as will overcome the presumption of the law that they were gratuitous, and to show that it was the intention and understanding of the parties that the services were to be paid for. So in this cause, if you find that plaintiff herein resided with her mother, and that she and her mother constituted one household, any services which plaintiff may have rendered for her mother, which appertain to such condition, are presumed to have been rendered gratuitously, and on account of the relation of the parties and the condition in which they lived; and before plaintiff can recover in this case she must show such circumstances as will overcome this presumption, and make it appear that it was the understanding between her and her mother that the services were to paid for."

The question as presented for our decision is ordinarily a mixed one of law and fact, and is finally settled by the jury, unless misguided by the law given to them by the court.

Considering said instructions together, the jury must have understood that the burden was on plaintiff to prove facts and circumstances which would overcome the presumption of law that her services were rendered gratuitously, or because of family relations, and that she must prove an express contract, or such facts and circumstances that an agreement to pay for the services in question may be inferred, and that such services were rendered by her in expectation of payment therefor. Our conclusion regarding the controlling principles announced in these instructions is not without the rule in the case of James v. Gillen (1892), 3 Ind.App. 472, 30 N.E. 7, where it is said: "Upon this principle it is universally held in all cases where the family relation exists, whether natural or assumed, in the absence of an express agreement or circumstances from which an agreement may be fairly inferred, that no promise will be created by implication of law to pay for services upon one hand or for support upon the other. This rule of law has its foundation in the theory that the...