50 S.E.2d 250 | Ga. Ct. App. | 1948
1. Under the facts of this case, and the law applicable thereto, the husband had no legal or pecuniary interest in the outcome of the case. Nor was he the agent of his wife in respect to the transactions to which he testified. Consequently, the trial judge erred in excluding the testimony of the husband.
2. Under the evidence, it was a question for the jury to determine whether or not the plaintiff was entitled to recover; and the trial judge erred in granting a nonsuit.
The testimony of Prentiss Fortner, husband of the plaintiff, and son of the deceased, indicates that his father began taking meals at his house in May, 1945, continued to eat there until November, 1945, and that about the time he started taking meals there he expressed a desire that the plaintiff be paid for her services to him, and she intended to charge him, and during this time she sometimes assisted him to and from the house for these meals, and on one occasion when he was sick for a week she prepared trays, and carried them to him, and during the time his father was taking meals at the home of witness, he said to witness that some arrangement had to be made to get someone to "see after him" and asked witness to move into the house with him; that in November, 1945, he and his wife moved into the house with his father, who at the time was bedridden for about 5 days; that one day before they moved there deceased expressed his desire that plaintiff be paid for what she had already done for him, but that from May, 1945, until the day before they moved in the house with him, nothing was said about charging him; that he and his wife lived in the house with deceased from November, 1945, until his death in November, 1946, during which time his wife waited on the deceased, prepared his meals, did his laundry; that his father was an aged and infirm man and was totally blind for 4 months prior to his death, during which time plaintiff attended him, that after they moved in the house with him a guardian, J. R. McCorkle, was appointed for him, that he overheard his father indicate to McCorkle that he wanted to pay plaintiff for what she did and suggested $3 or $4 per week; that a check was tendered to witness (it does not appear when), payable to him and the plaintiff, to pay plaintiff for her work, but that he burned it; that the work plaintiff did for his father was worth $30 or $40 per month; that sometimes after he came home at night, after midnight, he waited on his father some and in so doing he was just helping his wife out. On motion of defendant the testimony of Prentiss Fortner was excluded in its entirety.
Ferel Fortner testified that he was 15 years old and the son of Prentiss Fortner and the plaintiff, and was living with them from *78 May 15, 1945, until November, 1946, and that before they moved into the house with his grandfather, he had heard his grandfather say that he wanted plaintiff "to have pay for what she done for him," and that his mother waited on him for 18 or 20 months, beginning about March or April (1945), and that his mother had to cook for him, wait on him, change his clothes sometimes, and "did most of looking after him."
Mrs. Avis Whittle and Enoch Thompson testified in regard to the services rendered to the deceased by the plaintiff, this evidence being substantially the same as that of the husband and son of the plaintiff, and Thompson valued the services at $4 per day.
The plaintiff rested with the foregoing testimony, and defendant moved for a nonsuit, which was granted. The case is here on exceptions to the ruling in regard to the testimony of Prentiss Fortner, and to the judgment of nonsuit.
1. "Where a person not a party, but a person interested in the result of the suit, shall be offered as a witness, he shall not be competent to testify, if as a party to the cause, he would for any cause be incompetent." Code, § 38-1603 (4). "No agent or attorney at law of the surviving or sane party, at the time of the transaction testified about, shall be allowed to testify in favor of a surviving or sane party, under circumstances where the principal, a party to the cause, could not testify; nor shall a surviving party or agent testify in his own favor, or in favor of a surviving or sane party, as to transactions or communications with a deceased or insane agent, under circumstances where such witness would be incompetent if deceased agent had been principal." Code, § 38-1603 (5). The interest referred to above is a legal or pecuniary interest in the outcome of the suit.Dean v. Dean,
2. "Ordinarily, where one renders in behalf of another valuable services, which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same. *80
although no formal or express contract to pay has been made. Where, however, the parties sustain towards each other the relation of parent and child, and the services performed are in the nature of care and attention bestowed by a son upon an old or infirm father, no such presumption arises by operation of law. In order, therefore, to sustain a recovery by the son for such services, it must affirmatively appear, either that they were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of this relation." Hudson v. Hudson,
Judgment reversed. Felton and Parker, JJ., concur.