Birch v. Birch, 112 Mo. App. 157

Birch v. Birch

112 Mo. App. 157 | Mo. Ct. App. | 1905

BLAND, P. J.

(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 *164persons who live in one home, under one head or management. Duncan v. Frank, 8 Mo. App. 286; Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, 43 S. W. 633; Leake v. Lucas, 62 L. R. A. 190; Pearson v. Miller, 42 Am. St. Rep. 470; Bair v. Robinson, 108 Pa. 247; Menefee v. Chesley, 98 Iowa 55; Neasham v. McNair, 103 Iowa 695.

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-

*165pretation of the term and I apprehend that we must look to the ordinary definition of the term • to ascertain whether or not Day was a member of the Birch family. According to the evidence, he resided under a different roof until he became so feeble as to require a nurse and then, for the first time, he was taken under the Birch’s roof, not as a member of the family but for the purpose of being cared for and nursed through his sickness. Day was not dependent upon the Birches for his support and there is no evidence that Mrs. Birch was under any legal or equitable obligation to support him and I think the evidence is wholly insufficient to show that he was a member of her family. But if the question is at all in doubt, being a question of mixed law and fact, it should have been submitted to the jury under appropriate instructions. The evidence is all one way that the services were rendered by plaintiff and were accepted by Day and that they'were worth all and more than plaintiff claims for them; if they were not gratuitous, the law implies an agreement that they should be paid for. Sprague v. Sea, 152 Mo. 327, 53 S. W. 1074; Bosard v. Powell, 79 Mo. App. 184.

The judgment is reversed and the cause remanded.

All concur.