326 Mich. 169 | Mich. | 1949
Plaintiff filed claim for $8,500 against deceased’s estate for services consisting of nursing care and housework. Prom an adverse decision in the probate court plaintiff appealed to the circuit court and from its order disallowing the claim, plaintiff appeals here.
Plaintiff worked for deceased from the middle of August, 1941, until his death in February of 1948, a period, as she claims, of 338 weeks, but never received payment therefor. Testimony was adduced for plaintiff that the reasonable value of services similar to those rendered by her in the community and during the period in which she served deceased was from $20 to $30 per week. The statute of limitations was not raised by the defense. The defendant did introduce testimony, however, to show that under deceased’s will plaintiff was left a bequest of $500, household goods and an automobile and that at deceased’s death she became the owner by survivorship of a $79 United States savings bond.
The trial court held that plaintiff and deceased were members of the same household, that a so-called family relationship existed between them, that the services rendered by plaintiff were of the nature usually and ordinarily rendered to each other by members of the same family and household, that, therefore, plaintiff’s services must be presumed to have been rendered gratuitously, and that the facts and circumstances in the case were not sufficient to rebut the presumption, saying: “Mrs. Crowe may have, as she testified on the trial, expected payment,- but there is nothing to show that Parks expected to pay her for her services, and a promise to pay cannot be. implied by law by the mere rendition of services, the request therefor or the acceptance thereof.”
Assuming the correctness of the trial court’s holding that the relationship between the parties was such as to give rise to a presumption of a gratuity, it is undoubtedly the law that such presumption is
The trial court was clearly in error in finding that “there is nothing to show that Parks expected to pay her (plaintiff) for her services.” The testimony above outlined, standing undisputed and without any evidence of a contrary intention, shows that when the services were being rendered deceased expected to pay plaintiff for them. The finding to the contrary is against the clear preponderance of the evidence. True, the defendant calls attention to the testimony of plaintiff’s witnesses before the referee on claims and to their use of the term “money” there, rather than “wages” as on trial in the circuit court, when referring to what deceased had said he would give or pay plaintiff. Defendant inferentially suggests that this indicates that the placing of the word “wages” in deceased’s mouth was an afterthought not based on truth or fact. The defendant did not attempt to impeach these witnesses in this respect in the circuit court, failed to call the difference, if any, in their testimony to the witnesses’ attention and, hence, we are without the benefit of such explanation as they might have made concerning it. (See Mattox v. United States, 156 US 237 [15 S Ct 337; 39 L ed 409].) We hold that the presumption is rebutted, a promise to pay must be implied and that plaintiff is entitled to recover from deceased’s estate for her services. In so holding we are not unmindful of the bequest left plaintiff. In our view deceased’s expressed intention
It is not shown that the amount of compensation to be paid was agreed upon between plaintiff and deceased. Under such circumstances, the law implies an agreement to pay what the services were reasonably worth. Millar v. Cuddy, 43 Mich 273 (38 Am Rep 181).
Judgment reversed and cause remanded for determination of the reasonable value of the services rendered and for entry of judgment for plaintiff accordingly, with costs.