278 N.W. 104 | Mich. | 1938
Plaintiff brings this action against defendant to recover for charges and expenses incurred by her in connection with the care and maintenance of defendant's infant son, Richard. The case was tried before the court without a jury and, upon the trial, the court found that there was an express contract on the part of the defendant to pay plaintiff for the care and support of the child, and determined that the sum of $1,621.01, the amount claimed by plaintiff, was fair and reasonable, and accordingly entered judgment for her in that amount.
Defendant appeals, claiming that the court's findings are against the clear preponderance of the evidence and that the evidence clearly shows that defendant never expressly agreed to pay plaintiff for such care and maintenance. We are, therefore, called upon to review the evidence.
In September, 1925, defendant's wife, Irma, was dangerously ill. She had just undergone an operation for cancer. Their infant son was two and one-half years old and the mother was unable to take care of him. Plaintiff was the sister of defendant's wife. Plaintiff testified that when her sister came back from the hospital after the operation in September, 1925, she had a conversation with defendant.
She states, that defendant "asked me to care for Dick and he told me he would be willing to pay for him. * * *
"Q. He asked you to take care of the baby?
"A. Yes.
"Q. And said he would pay you for doing it?
"A. Certainly."
Bessie Stoutenburg, a sister of the plaintiff, testified that while the mother of the child was in the *382 hospital, Paul Haines, the defendant, came into plaintiff's kitchen and said: "Clara, will you take care of Dicky until I can make other arrangements and I will pay you."
Defendant claims that he never requested that plaintiff take the child; that she simply took him, without ever asking plaintiff's permission. There is no evidence that he ever made any objection. He testified that six months after his wife's operation, and when they all knew that she could not live much longer, his wife called him in and told him that she wanted it understood that plaintiff was to take the baby and bring him up, and that he acquiesced in his wife's wishes.
In his testimony defendant says that plaintiff and her husband understood that if the child needed anything he would furnish it, and that whenever they requested anything for the child defendant would send the money to them. On June 1, 1931, plaintiff wrote defendant stating that circumstances made it necessary to have a regular stipulated amount for the child's care; but defendant refused to enter into any such agreement, and told her that if plaintiff wanted him to start paying for the child's keep he would take him somewhere else. There had been some discussion between the parties that plaintiff and her husband would adopt the child, and finally on June 9, 1931, they petitioned the probate court for adoption, to which defendant consented.
The foregoing evidence and circumstances made the question of whether defendant expressly agreed to pay for the care and maintenance of his child a question of fact. In such cases the rule is that unless the findings of the court are contrary to the clear preponderance of evidence they will be sustained on appeal. In this case two witnesses testified that defendant *383
had expressly agreed to pay plaintiff for the care and maintenance of his infant child. There is nothing which is inherently improbable or incredible about such an agreement. On the contrary, it would be a natural thing for a father to agree to be responsible for his baby's maintenance during the fatal illness of his wife and after her death. Presumably, he could not take care of the infant himself. He might, of course, have arranged to place the child with some other members of his family without the necessity of paying for his maintenance; and he may have refused to agree to pay such expenses. But these are questions of fact. We do not think that the findings of the trial court are against the preponderance of the evidence. In reviewing law cases tried without a jury, we are not bound by the findings of fact made by the trial court, but consider the record as a whole. Burchard v. Otis Elevator Co.,
Other questions raised by defendant only bear upon the credibility of plaintiff's testimony, or the weight to be given it, which was for the determination of the trial court.Mayer v. Railway Co.,
We find no error. Judgment affirmed, with costs to plaintiff.
WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, POTTER, CHANDLER, and NORTH, JJ., concurred. *384
