Zearing v. Walters

• Decision Date: 24 November 1954
• Docket Number: No. 18554,18554
• Parties: Harvey J. ZEARING, Appellant, v. Stella WALTERS, Appellee.
• Court: Indiana Appellate Court

Page 625

122 N.E.2d 625

125 Ind.App. 202

Harvey J. ZEARING, Appellant, v. Stella WALTERS, Appellee.

No. 18554.

Appellate Court of Indiana, In Banc.

Nov. 24, 1954.

Paul R. Schnaitter, Harold E. Ford, Madison, for appellant.

Cooper, Cooper & Cooper, Madison, for appellee.

CRUMPACKER, Judge.

The appellee sued the appellant for services rendered and recovered judgment in the sum of $2,000. Her action is in quantum meruit and was tried on the theory that the circumstances under which such services were rendered and accepted implies a contractual obligation on the part of the appellant to pay her the reasonable value thereof. The appellant contends that the trial produced no evidence that will support a recovery on that theory or any other.

We are indebted to the appellant for a resume of the facts most favorable to the appellee which, being unchallenged, we adopt and quote:

'The appellant, Harvey J. Zearing, and his wife, Capitola Zearing, had both been previously married and had children by their former marriages. One of these children was Harold Walters who was about 12 years of age at the time his mother married the appellant. He was a member of appellant's household until sometime before he married the appellee, Stella Walters. Prior to July 1943, Capitola Zearing was residing on East Street in the City of Madison, Indiana, and her husband, the appellant, Harvey J. Zearing, seems to have been estranged from her at the time. Harold Walters, and the appellee were married October 9, 1942 and shortly after their marriage began to come to the Zearing residence, almost every evening. At this time the appellant was not living at the home. These visits continued after the appellant returned to the home in July, 1943 and resumed living with his wife, Capitola Zearing. The appellee and her husband maintained a separate household but went to the Zearing home frequently. The appellee went there not only in the evening but as Mrs. Zearing's health became worse often went to the home in the daytime. The appellee helped Mrs. Zearing clean house, washed woodwork, did some papering, some painting, cooked meals at the Zearing house and washed dishes. Mrs. Zearing had an operation February 2, 1949, and was in the hospital approximately two weeks. During this period the appellee was at the Zearing home 'most' every day, all day, and at this time cooked Mr. Zearing's meals. It also seems that over some period of time, the exact amount of which is not revealed, appellee shaved Mr. Zearing, cut his hair and helped him to the table and bath room. Mrs. Zearing died November 14, 1950, and the plaintiff was at the Zearing house at least a part of the time for two weeks after Mrs. Zearing died.

'The record does not show that Mrs. Walters was requested, either by appellant, or Capitola Zearing, his wife, to render any services whatever. The record does show that appellee never had a conversation of any kind with the appellant in which he requested her to perform any services, nor does it appear that appellant's wife ever requested appellee to perform any services. The record affirmatively shows appellee never had any conversation with the appellant, either before, during, or after the services were rendered, in which payment was mentioned by either of them, nor was there ever any conversation between them indicating that the services which were rendered were understood by either of them to be services for which payment would ordinarily be made by persons similarly situated. The record affirmatively shows that appellee kept no record whatever during the entire eight year period of what services she performed or the time involved in the performance of these services. The appellee testified as a witness in her own behalf and frankly stated on the witness stand that she did not keep track of the days she worked and could not tell the court how many days she worked at the Zearing home. After the death of Mrs. Zearing the appellee did discuss future arrangements with the appellant and offered to take care of him the rest of his life if he would convey the house on East Street to her. The appellant declined to enter into an arrangement of this kind, but informed the appellant that the property ought to go to his, the appellant's children.'

To this we add the fact that the appellant's own children seemed indifferent to his welfare and did very little to aid and comfort him during the period involved.

Ordinarily it may be said that where one accepts and retains the beneficial results of another's services, the law will imply a previous request for such services and a promise to pay for them. Chamness v. Cox, 1891, 2 Ind.App. 485, 28 N.E. 777; Estate of Reeves v. Moore, 1892, 4 Ind.App. 492, 31 N.E. 44; Rhodes v. Matthews, 1879, 67 Ind. 131.

This implication or presumption, however, may be rebutted by evidence that the circumstances under which the services were rendered and accepted were such as to exclude the idea that the parties were dealing on the basis of a contract. Chamness v. Cox, supra. To this effect is that group of cases where a family relationship exists between the parties in which it is generally held that the fact that the services were voluntarily rendered without express contract while the...