198 Ky. 114 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
By this action in the Daviess circuit court appellee Dan Owens sought to- and recovered a judgment against
■ The evidence shows that Lucius was the father of Mrs. Owens, wife of appellee Owens, and that he went to live at the home of his daughter and appellee more than two years before his death, and for that time lived as a member of the family. While he was old and somewhat diseased, he was able to go about most of the time. Occasionally he had short sick spells but would be up and out in a day or so. About a week or ten days before his death he took seriously ill and was confined to his bed until he passed .away,
Where one seeks to recover for nursing, care and attention to a close relative, he must show by clear and convincing evidence the existence of an express contract to pay for such services or his claim will be denied. The only evidence offered by appellant in support of his aver.ment that decedent Lucius expressly agreed and promised to pay him for his services in nursing and caring, for him was given by the witness, V. O. Smith. That witness was asked:
. “Q. In your conversation that Henry Lucius — this conversation that you had with Henry Lucius — did he indicate to you that he was going to pay Dan Owens for*116 the services he rendered Mr. Lucius? (Appellant objected; objection overruled.) A. He did. He said he was going to pay him.”
After taking the evidence of several witnesses on other subjects, Y. O. Smith was recalled and was asked these questions and gave the answers indicated:
“Q. I will ask you if Dan Owens was present at the time you had that conversation with Mr. Lucius? A. Yes, sir, he was present. Q. Was that conversation about the time he went to Dan Owens’ to live? A. Yes, sir. Q. Did he state in that conversation and in the presence of Dan Owens what he wanted to pay him for? A. Yes, sir. Q. What did he say he wanted to pay him for? A. For his services in taking care of and looking-after him. ’ ’
This evidence does not prove an agreement between the decedent Lucius and his son-in-law Owens to pay for services rendered the father-in-law by the son-in-law. In fact, no agreement is shown to have been made between decedent Lucius and appellee Owens by which the appellee was to receive compensation for the services which he says he performed. We have held in a number of cases that mere declarations by the sick relative, living in the home, that he intends to pay some named member of the family for the services being rendered to him, does not establish the existence of a contract, even though such expression be made in the presence and hearing of the person rendering the services.
In the case of Bolling v. Bolling’s Admr., 146 Ky. 313, we held that where the decedent upon whom the daughter-in-law waited in his sickness had said to her or in her presence “He (the decedent) had plenty and they would be well paid for it. ’ ’ And again, ‘ ‘ Carrie, didn’t I promise to give you $500.00 a year to stay here and wait on me ? ” To which she answered. ‘‘ Yes, sir. ” We held that such statements did not amount to proof, in a case like this, sufficient to establish an express contract to pay for the services.
In the case of Armstrong’s Admr. v. Shannon, 177 Ky. 548, the witness testified: “I heard him (decedent) say that at his death he intended for my mother and father to have all he had. I heard him say that at Aunt Prince’s death he intended that my mother and father should have all that he had for taking care of him.” “Q. Where did that conversation occur, and who was present? A.' Well, it was at our old home;'he
Measured by the foregoing authority the evidence offered by appellee Owens in support of his claim was wholly insufficient to support it, and the trial court should have directed the jury to find and return a verdict for appellant, administrator of Lucius.
The instructions were erroneous in that they directed the jury to find for appellee Owens in case it believed from the evidence that the services were rendered under
For the reasons indicated the judgment is reversed for proceedings not inconsistent with this opinion.
Judgment reversed.