Williams v. Walden
Decision Date | 11 March 1907 |
Parties | WILLIAMS v. WALDEN |
Court | Arkansas Supreme Court |
Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.
STATEMENT BY THE COURT.
L. F C. Walden presented to the administrator of the estate of R E. Walden the following claim: To taking care of R. E. Walden during his last sickness in which he was confined to his bed for three years at $ 7.50 per month, $ 270. The account was duly verified. The administrator refused to allow it, and it was presented to the probate court for allowance. The probate court refused the claim, and appellee, plaintiff below appealed to the circuit court. There appellant, as administrator, filed an answer to the claim, which contained the following allegations:
On behalf of appellee the evidence tended to show that R. E. Walden, the father of appellee, was an old man of about 85 years, in feeble health two or three years before he died, and for several months prior to his death was in a rather helpless condition. He was afflicted with chronic indigestion, and sometimes would have bowel complaint. He was a large man, weighing between 180 and 190 pounds. He would have involuntary discharges from his bowels, had to be lifted, cleaned and dressed, and required the constant attention and services of some one to nurse him. The appellee for the most part attended to these duties. He was assisted some by his mother, who was also old and feeble. Occasionally other children of R. E. Walden would visit him, and during these times would render some assistance. But appellee lived with his father and mother, and the nursing of his father during all the time of his affliction and in his last illness was done chiefly by appellee. He washed his father's clothes because they were too offensive to put with the ordinary wash.
One witness, sister-in-law to appellee, who lived near by, and who was frequently at the home of R. E. Walden during the time appellee was nursing him, heard appellee's father say that he would pay appellee for it some day. The mother of appellee testified that appellee's father did not agree to give plaintiff anything for waiting on him, except that he wanted him to have the house and twenty acres of land. He never wrote that down, and there was no agreement to pay for the services. There was proof tending to show that the services rendered by appellee were worth $ 15 per month.
On behalf of appellant there was evidence that appellee had said repeatedly that he never intended to make any charge for waiting on his father; said before his father's death that it was his duty to wait on his father, and he was not going to neglect him, and told his brothers and sisters after his father's death "that he never dreamed of making any charge" for what he had done for his father.
At the instance of the plaintiff, the court instructed the jury as follows:
The appellant duly saved his exceptions to the ruling of the court in giving these instructions. Appellant presented prayers for instructions to the effect that the chancery court of Howard County had adjudicated the interests of the parties in controversy in all the lands of R. E. Walden, and that the circuit court had no jurisdiction of that matter in this action, and that the adjudication of the chancery court in that matter was conclusive here. Also prayers to the effect that no verdict could be rendered in this case as upon a contract from proof that R. E. Walden intended or promised in his lifetime to give to the plaintiff any real estate. Also prayers for instructions that any promise or agreement of R. E. Walden to convey to his son real estate, if made, would have to be in writing, etc.
Appellant also asked the following:
(Refused.) Given after amendment so as to read, "ordinary" domestic service.
(Refused.) Amended so as to read "ordinary" domestic services and given as amended.
Appellant duly excepted to the court's ruling in modifying and giving the instructions as modified. Other instructions were given at the instance of appellant.
The jury rendered a verdict for $ 240. Appellant's motion for new trial, containing assignments of error reserved at the trial, was overruled, and this appeal taken. Other facts stated in opinion.
Judgment reversed and cause remanded.
W. C. Rodgers, for appellant.
1. The testimony of appellee with references to the services for which he claims pay in this case was incompetent and ought not to have been admitted. Sched. Const. § 2; 67 Ark. 318; 32 Ark. 337; 94 S.W. 927; 80 Ark. 277.
2. There was no proof of extraordinary services. The court's instruction with reference to extraordinary services, and the emphasis of that word, was improper and misleading.
3. The presumption is that domestic services rendered by the child to the parent are not rendered with the intention of charging for the work, and this presumption is not overcome by casual declarations that the recipient would pay for the services, or that the child should be paid. 96 N.C. 149; 29 Wis. 278; 111 Pa.St. 460; 22 S.W. 557; 47 Pa.St. 534; 8 Pa.St. 213; 7 A. 60; 29 Pa.St. 465; Id. 369; 120 Pa.St. 170; 77 Md. 494; 92 Ky. 556; 129 Pa.St. 922; 30 Mo.App. 176; 34 S.C. 255.
Sain & Sain, for appellee.
The record here does not show that appellee testified to any "transactions with or statements of the deceased." If there was an express or implied contract to pay for the services rendered, or if the services were of such nature under all the circumstances, including the relation of the parties, as to lead to a reasonable belief that the parties understood that they were to be paid for, appellee is entitled to recover. 56 Ark. 382; 75 Ark. 191. If there was an implied promise to pay for the services, he was entitled to recover on a quantum meruit. 41 Mo. 445. Whenever a party avails himself of the benefit of services done for him, although without his express...
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