Switzer v. Kee

• Decision Date: 27 October 1893
• Citation: Switzer v. Kee, 146 Ill. 577, 35 N.E. 160 (Ill. 1893)
• Parties: SWITZER v. KEE.
• Court: Illinois Supreme Court

146 Ill. 577

35 N.E. 160

SWITZER

v.KEE.¹

Supreme Court of Illinois.

Oct. 27, 1893.

Error to appellate court, third district.

Claim of Samuel Kee against the estate of Mary Kee, deceased. Claimant obtained judgment, which was affirmed by the appellate court. Theodore B. Switzer, special administrator of the estate, brings error. Affirmed.

Agnew & Vose, for plaintiff in error.

Baily & Holly, for defendant in error.

SHOPE, J.

The following opinion of the appellate court is a sufficient statement of the case: ‘Per Curiam. The appellee filed a claim against the estate of Mary Kee, deceased, for services rendered in taking care of decedent during the last two or three years of her life. Th case was removed by appeal to the circuit court, where the issues were submitted to a jury, resulting in a verdict in favor of the claimant for $1,200. The court refused a new trial, and rendered judgment on the verdict. The claimant was the son of the deceased, and the services were rendered while she was in his house. For a long time after the death of her husband she resided with a granddaughter on the homestead. Becoming quite feeble and helpless from age and disease, she needed a great deal of assistance and nursing, which was rendered by her children and other persons living in the neighborhood. Finally it was suggested to her and to the claimant, by the attending physician, that a better, and indeed necessary, arrangement would be that she should be taken to the house of the claimant for such care and treatment as she required. With some reluctance she agreed to go, seeing that it was necessary that some better provision should be made, and that, as her infirmities were increasing, she could no longer have suitable attention while remaining in her own house. She fully understood the matter, and while nothing was said as to the terms, and while she was perhaps not fully competent at all times to make a contract involving details, she evidently understood the services she was to receive would not be gratuitous, and it is quite as clear the claimant expected to be paid. We do not care to quote the evidence on this point, but we are persuaded there is enough in it to warrant the jury in finding that there was an expectation on both sides that the claimant should have proper compensation. Certainly, she was not residing with her son as a ‘member of his family’ in the ordinary sense of the term. While she was able to care for herself, and long after, she preferred to stay in her own home, and, when she went to her son's, it was for the express purpose to be cared for as an invalid, and for no other. Her illness was protracted and distressing, and she required attentions involving great sacrifice of time and comfort on the part of her son and his wife. They attended to her personally, and employed male and female help to take their places as far as necessary in the duties of the household and farm. The amount allowed by the jury is quite within the range of the proof, and, upon the merits, we think the verdict was right. We find no substantial error in the rulings of the court upon the trial, and are of opinion the judgment should be affirmed, which is done. Affirmed.'

The principal ground insisted upon for reversal in this court is that the circuit court erred in refusing defendant's eleventh instruction, which was as follows: ‘(11) Where a child lives with a parent, or a parent with the child, the relationship between the parties is so intimate that the law does not imply a contract to pay money for support or services. Unless it be shown that there is an express contract to pay for such support and services, a recovery therefor cannot be had by one of the parties against the other. In the absence of an express agreement, the law indulges the generous presumption that what is done for each other by parties thus nearly related is done gratuitously, and as the prompting of natural affection.’ This instruction is copied from the opinion in Faloon v. McIntyre, 118 Ill. 295, 8 N. E. Rep. 315, and which, as applied to the particular facts of that case, was a correct statement of the law. In that case no express contract to pay for the support and services there claimed to have been furnished was shown, nor were any facts or circumstances proved from which such a contract could be legally implied. The law undoubtedly is that where such relations have been voluntarily assumed by the parties, and there is no evidence of an express contract, or proof of facts and circumstances sufficient to show that it was intended by the parties, at the time the services were rendered or support was furnished, that pecuniary recompense should be made therefor, no implied contract will arise from the fact of rendering the...