152 A. 493 | Md. | 1930
This appeal is by the plaintiff below from a judgment for costs on a directed verdict at the close of the plaintiff's case in favor of the defendant. The suit is in assumpsit on the *671 common counts by Frank Krug against Caroline Mills, administratrix of the estate of Frank Darmsteadt, deceased, for services alleged to have been rendered the deceased in his lifetime. The pleas of the defendant were the general issue pleas and a plea of limitations. The single exception contained in the record is to the action of the lower court in granting the prayers of the defendant which directed the verdict as above stated. These two prayers challenged the legal sufficiency of the evidence on behalf of the plaintiff to sustain a verdict, and therefore we must assume the truth of the evidence offered by the plaintiff, together with all favorable inferences legally and properly deducible therefrom. In such a situation it is incumbent on us to examine the testimony in order to determine the correctness of the court's ruling on the prayers. The two questions to be determined from the evidence are: First, does the evidence show that the plaintiff was a member of the decedent's family; and, second, does the evidence prove or tend to prove such an express or implied contract between the plaintiff and the decedent as should have been submitted to the jury for its consideration?
Before reciting the facts, we will state what is the settled law in Maryland as determined by previous decisions of this court. In order to justify a claim for services against a decedent, there must have been a design at the time of the rendition to charge, and an expectation on the part of the recipient to pay, for such services (Elosser v. Fletcher,
The record shows that the plaintiff is the nephew of the deceased; that the uncle owned a house and parcel of ground on the water front in Anne Arundel County; that the plaintiff in 1911, when he was thirteen years of age, was living with his mother in Baltimore City; that the uncle was at that time living alone, and desired his nephew as a companion. The mother of the plaintiff was told this by the uncle, and she was asked to allow the uncle to take the boy to his home to live. This the mother was satisfied to do, she knowing, as she states, "he was taken care of." In addition, the deceased was the boy's godfather, and, from the time in 1911 when the boy went to live with the uncle, acted as a father and "was very good and kind to him." The mother never visited her son from the time she turned him over to the uncle in 1911 until the summer of 1928. The uncle gave the plaintiff his board, lodging and clothes; the plaintiff lived in the same house with the uncle, each doing a part of the household work, and the boy assisting the uncle in crabbing and fishing, which appears to have been the principal occupation of the deceased. It is apparent from the record that the mother regarded her son as a member of the uncle's family, for she says, "they just lived to themselves as one family," speaking of her son and his uncle. The plaintiff had three brothers and one sister, who lived at home with their parents. The plaintiff left his uncle in December, 1919, and sought employment elsewhere, at which time he was about twenty-one years old. During the period of about nine years, from the time of his arrival at twenty-one years of age to the time of *675
his uncle's death, the plaintiff worked for several different employers, one of whom was Mr. Thom, who owned a farm in Anne Arundel County a short distance from the home of the uncle. His service for Mr. Thom covered a period of about two years, during which period, except in cold weather, when the water was frozen, the plaintiff lodged and boarded at the home of his uncle, going each day from his uncle's place to Mr. Thom's for his work; and during all of which time he paid board to his uncle. This period was from 1925 to 1927, and was from six to eight years after the termination of his service to his uncle, for which he now claims compensation. It is clear, under the previous decisions of this court, that the plaintiff was a member of his uncle's family; and therefore any service rendered by him to the uncle while such status continued, the law presumes to have been gratuitous. InProvident Trust Co. v. Massey,
In the present case the mother of the plaintiff testified: *677 "My brother said to me, let me have the boy to work for me, and help me, and I am going to pay him, and he said he would get it when I was gone. That he would talk about her son, that he would say, that boy has been looking after me all my days, talking of taking care of me when I was sick. That it was about six months after my son was placed with my brother that my brother first visited me. That her brother said on various visits, that boy has been with me all these years working for me and helped to earn that money, and he is going to get it some day when I am gone, it will be there for him. That the last Monday that he came to my home prior to his death, we were in the kitchen talking, and he said to me, everything will be all right, and don't forget, when I am gone, that boy gets all that I have got, he worked for it and helped to earn it, and taken care of me when I was sick, and helped me all the time, and when I am gone he is going to get it, that the boy always was with me as a companion, taking care of me, when I was sick, he worked for me and helped to earn that money and he is going to get it when I am gone. He said, I am going to have the boy with me to work for me, and what he earns I am going to save and put away for him."
Conrad Backert testified: "In 1917 I was drafted into the army, and Mr. Darmsteadt was at my house, and we were sitting at the table eating, and my father said to him, Well, Frank, I am losing my boy, he says, how is your boy down there? He says, well, they aint bothering him. He says, well, how do you pay that boy? He says, well, I tell you, Mathis, he says, I don't pay that boy anything, but when I die what I have got will go to that boy, he says, that pay he will receive, but I am taking care of him while he is with me."
Benjamin Marks testified: "Darmsteadt would come and tell him about Mr. Krug, about not paying him anything, and he was going to take care of that boy and look after him, and if anything should happen to him the boy was going to get what he had, and that is all he ever told me; that he told me this the last time in 1927, the third week in November." *678
Jennie Schamel testified: "Darmsteadt always said that he did not pay the boy anything, and I would say to him, why didn't he pay him something, when he comes to the city the boy wanted something, and he said it was no use to pay him anything, he could not spend it in the country, but when anything happened to him the boy would be well provided for. This statement was made to her the last time in the spring of 1927." Being asked why she had a conversation with the uncle instead of with the boy, she said: "Because I thought it was the uncle that should be consulted and not the boy. Q. Did you ask the uncle why he would not give him some money or why he did not pay him something then? A. Then he would answer, when he was to pass out what he had was to go to the boy. Q. So he was to get nothing at all while he lived, is that correct, is that right? A. He didn't pay him anything, that is right. Q. But he was to give him nothing at all while he lived. Did he say anything about how much he would give him? A. No, sir. What he left was to go to Frank."
The nephew lived with the uncle, performed services which are usually and incidentally performed by a member of the family for other members of the same family, and undoubtedly was highly regarded by the uncle, which made it natural for the nephew to expect that he would be remembered by his uncle through a will, especially in view of the fact that the record discloses that the only child of the deceased lived apart from her father and never visited him or had any association with him for many years prior to his death. That this was the true situation is emphasized by the fact that the nephew paid board to the uncle when staying at his uncle's home six or seven years after the rendition of the services for which compensation is now sought, and at a time when the uncle, according to the present contention, owed him (the nephew) a large amount for the services rendered. ProvidentTrust Co. v. Massey, supra.
We are not unmindful of the fact that, in considering the question under the prayers in this case, we are not passing *679 upon the weight of the evidence, but upon whether there is any evidence legally sufficient to take the case to the jury. Having determined that the plaintiff and the deceased were members of the same family, the law presumes that any services rendered was gratuitous, and in order to rebut such presumption it is incumbent upon the plaintiff to show by clear, satisfactory, and unequivocal evidence that there was at the time the services were rendered an intention on his part to make a charge for his services, and a corresponding purpose on the part of the deceased to pay for same. This, in our judgment, the plaintiff has failed to do; and we find no error in the ruling of the lower court directing a verdict for the defendant.
Judgment affirmed, with costs.