30 Kan. 704 | Kan. | 1883
The opinion of the court was delivered by
The facts in this case are .substantially these: Mazeppa E. Hines presented a claim against the estate of Matthew Ensey, deceased, for washing, ironing, making and mending clothes for said Matthew Ensey, and for nursing, waiting upon and taking care of him from September 13, 1877, until September 19, 1881, amounting to $416. After a hearing upon the claim in the probate court, an appeal was taken to the district court. That court gave her judgment for $250, from which judgment the executor of the decedent’s will brings the case to'this court.
Upon the trial, it was established that the grandmother of Mrs. Hines married Matthew Ensey in December, 1874;
On the part of the executor, evidence was offered tending to show that Mrs. Hines had no contract with the decedent; that she lived with her grandmother and her husband, Mr. ■Ensey, from the time they were married, as one of the family; that she was furnished with clothing, boarding and lodging as one of the'family; that she kept house for Mr. Ensey from the death of her grandmother to the date of her own marriage, and when she was married she and her husband lived at Mr. Ensey’s house; that she lived with him after her marriage just as she did before; that she never claimed any pay for the services sued for until this action was brought.
“Was there an understanding between Matthew Ensey, deceased, and the plaintiff that said Ensey was to pay a reasonable compensation for the services of plaintiff? A. Yes. .
“Was the plaintiff a step-granddaughter of Matthew Ensey, deceased? A. Yes.
“ Did the plaintiff live with Matthew Ensey, deceased, as a member of his family, up to the time she married Theodore Hines? A. Yes.
“After the plaintiff married Theodore Hines, did she and her husband move into the house of the decedent and continue to live in his house, using his household and kitchen furniture until his death, as a member of his family? A. Not as a member of his family.
“Was an express contract ever made between the plaintiff and Matthew Ensey that Ensey should pay the plaintiff a stipulated sum of money for waiting upon and taking care of him? A. No.
“If a contract was made between the plaintiff and Matthew Ensey, deceased, what was the price agreed upon between them per day, week, month, or year, for plaintiff’s care and attention to the deceased? A. There was no stipulated price agreed upon.”
It is contended on the part of the plaintiff in error that this case comes within the doctrine established in Ayres v. Hull, 5 Kas. 419, and especially within the authority of Gunther v. Birkicht, 22 Mo. 439, and therefore that the verdict of the jury should be set aside. But'for'the special findings of the jury, we would be compelled to reverse the judgment. If Mrs. Hines, although only a step-granddaughter of the decedent, continued to reside in the home of the decedent after her marriage, as she did before, performing her share of the ordinary labors of the household, and receiving in return her maintenance and the comfort and protection of the family relation, in- the absence of proof of some other understanding she must be presumed to have done the services sued for gratuitously and without the expectation of pecuniary reward. Clearly the law would not imply a contract for services so rendered by her. But the findings establish conclusively that
The instructions, given were awkwardly drawn, and in one view, erroneous; but as the jury did not give compensation for the services of Mrs. Hines until after her marriage, and as she did not live, after her marriage, with Mr. Ensey as a member of his family, and as the jury found that there was an understanding between her and Mr. Ensey that the latter was to pay her a reasonable compensation for her services rendered to him, no material error was committed by the charge of the court. The jury founded their verdict upon the fact that Mrs. Hines after her marriage did not remain a member of the family of her step-grandfather.
We have no inclination to change in any respect the law as stated in Ayres v. Hull, supra, and Greenwell v. Greenwell, 28 Kas. 675; but if Mrs. Hines did not remain in the family of her step-grandfather Matthew Ensey, after her marriage, as a member of his family, and if, under such circumstances, she performed the services set forth in her account upon an understanding between herself and Mr. Ensey, that he was to pay her a reasonable compensation for such services, she was entitled to recover.
The judgment of the district court must therefore be affirmed.