146 Ky. 313 | Ky. Ct. App. | 1912
Commissioner
Affirming.
Appellants, Thomas M. Bolling, and Carrie Bolling, his wife, brought this action against John A. Prall, administrator of J. B. Bolling, deceased, to recover $3,260 for services rendered the intestate at his special instance and request, in nursing and waiting upon him, and in washing, cooking, keeping house for him, etc. The administrator filed an answer denying the allegations of the petition, and pleading a counterclaim of $4,188 for rent and board. By reply, appellants pleaded a contract on their part to pay the intestate $100 a year in consideration of his furnishing appellants house rent and board, and by which the intestate further agreed to pay appellants a reasonable compensation for the services rendered as set out in the petition. Trial was had, and the jury returned a verdict in favor of the administrator. Prom the judgment predicated thereon, this appeal is prosecuted.
For appellants it is insisted that the verdict is palpably against the evidence, and that the instructions did not present the law of the case. Briefly stated, the facts developed by the evidence are as follows: Appellants went to live with the intestate, Dr. J. B. Bolling, about August 1,1904. At that time he was in the neighborhood of eighty years of age. He was somewhat feeble, and his eye-sight was impaired. His wife had been dead for several years, and no one was living with him. He had a house and lot in the town of Perryville which he occupied as a residence. He had a small farm in the country, which he did not cultivate, but used principally for the pasturage of cows. Prom the time that appellants arrived, Mrs. Carrie Bolling did the cooking, house-work, and the greater portion of the time, the washing, ironing, etc. She also assisted Dr. Bolling in dressing by arranging his collar and tie, putting on his cuffs and tieing his shoes. Occasionally she would read the Bible and Courier-Journal to him. About three weeks before his death, Dr. Bolling was injured by a fall. Prom that time on he was unconscious the greater portion of the time, and Mrs. Bolling performed the duties ordinarily performed by a trained nurse. During all this time, Thomas M. Bolling assisted his wife, and in addition to that, drove up the cows and worked in the garden. At the same time, he traded in stock, but devoted most of his time to
Appellants had a contract with Dr. Bolling, and several receipts are in evidence showing the payment by appellants of $100 each year for rent and supplies.
For appellee it was shown by three or four witnesses that appellants each admitted that the contract they had with the Doctor was to pay him $100 a year and take care of him, and in consideration therefor they were to live in the house and the Doctor was to provide everything. Appellants deny this, and claim they were not discussing the services sued for, but were discussing only the rent contract.
In its first instruction, the court authorized a recovery in the event the jury believed from the evidence that appellants had a contract with Dr. Bolling by which he agreed to pay them for the services rendered. In the second instruction, the jury were told in substance to find for appellee if they believed from the evidence that the contract with reference to rent and supplies also included the services rendered by appellants. It is earn--estly contended that appellants were entitled to an instruction based upon an implied promise to pay the reasonable value of such services as were rendered to Dr. Bolling at his instance and request. In this connection we are cited to a number of cases holding that where services are performed for another at his special instance and request, the law will imply a promise to pay. While this is the ordinary rule, it does not' apply to a
But it is further argued that as several witnesses testified to an express promise, and there was no evidence to the contrary, the verdict of the jury is flagrantly against the evidence, and. should not be upheld. While it is true that appellee did not, and doubtless could not, prove by direct testimony that no such promise was made, yet he did prove admissions by each of appellants to the effect that the contract with reference to house rent and supplies was the only contract they had with the intestate, and that under this contract they were to perform the services sued for. Another strong circumstance is the fact that although appellants claim that each year, the intestate was indebted to them in the sum of $600 for services rendered, they kept paying $100 a year under their contract. . Thus at the end of five years, the intestate, according to appellants, was indebted to
Judgment affirmed.