112 Mo. App. 157 | Mo. Ct. App. | 1905
(after stating the facts). — The evidence is sufficient to show that Day intended and agreed to compensate plaintiff for the services she rendered him during his last sickness; but there is no evidence that she intended to charge for her services, and the trial court, either on the assumption that plaintiff had been compensated for these services in advance, by the conveyance to her by Day of the house and lot, or on the assumption that Day was a member of her family at the time the services were rendered, nonsuited plaintiff. The conveyance of the real' estate was made long prior to the rendition of the services and before it could be known or even anticipated that the particular services would be needed and, I think, as the evidence inferentially shows, the deed was made for another and different consideration, to-wit, .for the services and kindness of the plaintiff to Day’s granddaughter. This conveyance was entirely foreign to any issue in the case and should not have been admitted in evidence. Was Day a member of plaintiff’s family when she rendered the services for which she charges, is the important ques-' tion in the case. If he was, the authorities in this State are all one way that when services are rendered one member of a family by another member, the law presumes they were gratuitous and to overcome this presumption an agreement, express or implied, to pay for such services must be shown. Sloan v. Dale, 90 Mo. App. l. c. 90, and cases cited. If it be assumed that plaintiff’s evidence tended to show that Day was a member of her family, there is also evidence tending to show an implied contract on Day’s part to- pay for the services she rendered him and the question of whether there was such an agreement was for the jury. But returning to the question, was Day a member of plaintiff’s family? “Family,” at law, is a collective body of
In Roco v. Green, 50 Texas l. c. 490, the court drew from the authorities the following rules to determine when the relation of family, as contemplated by law, exists:
“1. It is one of social status, not of mere contract.
“2. Legal or moral obligation on the head to support the other members.
“3. Corresponding state of dependence on the part of the other members for this support.”
In Grand Lodge v. McKinstry, 67 Mo. App. 82, it was ruled: “The term family, as used in the statutory provision authorizing such a corporation (a fraternal beneficiary association) to provide for the relief of families of deceased members, may embrace those whom a member is equitably bound to support.” Construing the meaning of the term family used in the same statute, this court, in Hofman v. Grand Lodge, 73 Mo. App. 47, said that the term family should be construed to embrace “such persons as habitually reside under one roof and form one domestic circle, or such as are dependent upon each other for support, or among whom there is a legal or equitable obligation to provide support.”
Numerous cases might be cited where the term is given a more or less expanded or restricted interpretation for the purpose of preventing the lapse of a beneficial life insurance policy or for the purpose of carrying out the beneficial provisions of a statute or to administer the bequests of a testator as expressed in his last will. The case at bar does not fall within any rule or policy requiring either an expanded or restricted inter-
The judgment is reversed and the cause remanded.