Brock v. Cox

38 Mo. App. 40 | Mo. Ct. App. | 1889

Ellison, J.

It is claimed by plaintiff that as her mother, Mrs. Robinson, was not living with her till the service began that they should be regarded as strangers, and that the rule of .non-presumption of a promise to pay, which arises where the family relationship exists, should not obtain in this case.

I do not agree to this contention. The parties were related by the closest ties of blood, and the law in such case follows the dictates of humanity, and will ascribe the attention and care which a daughter bestows upon her aged mother to the tender impulse which should arise from the relationship, and not to a desire for pecuniary reward. The ordinary presumption which would arise between strangers does not prevail. Woods v. Land, 30 Mo. App. 176. On the other hand, the relationship rebuts such presumption (lb.), and, in the absence of any express promise, the important question is the intention, which must be shown to exist upon the one side to pay, and, upon the other side, to receive pay, in order to establish an implied promise. Copp v. Hardy, 32 Mo. App. 588.

It is evident, from the instructions refused for defendant, and from those given by the court, that the principles above indicated were not considered applicable to this case from the fact, no doubt, that the plaintiff, prior to the commencement of the account, was living apart, that is, that she and her mother were not, prior to this, members of one and the same family; but this, considering the nature and character of the service rendered here, can make no difference, and does not have the effect of altering the presumptions which are allowed in such cases.

It was plaintiff’s duty to have shown by testimony that the intention existed, at the time the services were rendered, to pay and receive pay. This was not done, the mere fact of rendering the service is all. This, considering the helplessness of her mother, would lead us to ascribe plaintiff’s motive to duty and affection rather than an expectation of compensation.

The evidence does not even show a request on the part of the mother, but does show that plaintiff asked her to ! ‘ come, go home with me, and I will take care of you as long as you live.” There is nothing from which it can be inferred that there was an implied contract, and, such being the case, it follows that the judgment should be reversed, and it is so ordered.

All concur.