59 Mo. App. 209 | Mo. Ct. App. | 1894
This is an action which was brought in the probate court by the plaintiff against the •defendant, who is the administrator of the estate of Edward G-ooch, deceased. The cause was removed by appeal to the circuit court where there was a trial which resulted in a judgment for the plaintiff and from which the defendant has appealed. The sole ground of the defendant’s appeal is, that the circuit court erred in refusing to instruct the jury at the conclusion of the evidence, to the effect that under the law •and the evidence the verdict should be for defendant.
The evidence abundantly proves that in March, 1886, Edward Gooeh, a feeble and decrepit man, á widower over eighty years of age, was left homeless by the removal from Missouri to Kansas of a grandson
As to the weak and dependent condition of the old man, his frequent illness, the constant and exacting attention which his condition required, and the faithful and unremitting kindness and devotion of his daughter and her children to his needs, there is no question made. It is conceded that plaintiff nursed him and cared for him during these years, made the best provision for his comfort that her means allowed, treated him with the utmost consideration and affection, and that, her services were worth all that she claims.
It is clear that in consequence of the relation of the plaintiff to the deceased that the ordinary presumption of an agreement to pay for the services which the-former is conceded to have rendered the latter, does not obtain. Unless the record discloses some substantial evidence of an expectation on the part of the plaintiff' to receive, and on that of the deceased to pay, and that the service was rendered and accepted in recognition of such expectation, there ought to have been no recovery. There must have been such a contract between the parties as the law could enforce. The general rule-between strangers, that whenever service is rendered and received, a contract of hiring, or an obligation to pay, will be presumed, does not apply in a case of this kind. The relationship of father and daughter exist
The testimony further showed that the deceased had, during the six years he had lived with plaintiff, only bought for the use of her family about $20 in groceries and had given plaintiff $2.50 in money. The evidence of the plaintiff’s poverty and the comparatively comfortable circumstances of the deceased, when considered in connection with the other evidence of
We can not perceive from the record that there is such a preponderance of evidence against the verdict as necessarily to imply passion or prejudice on the part of the jury. The trial court could not have done more than to leave it to the jury, as it did, to determine the weight and credibility of the testimony and the amount, if any thing, the plaintiff was entitled to recover, and having done so the verdict must be regarded as conclusive on us.
It follows that the judgment must be affirmed.