187 Ky. 797 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
* ‘ Q. Did you have to sit up with him at- night, nursing him day and night too? A. We did for a week or more, but my wife was up all through the night. She lay on a bed close to him where she watched him and got up and waited on him. Q. Did the defendants, Andy and Clay Winn promise to pay you and your wife for
Thomas Winn, a brother of the defendants and also of the plaintiff, Maude Petrie, testified for the plaintiff, saying:
“Q. I talked with Andy a great deal. I remember Andy telling me before he died that he ought to pay her, and then after he died he came out where we were and I said: 'You ought to pay Maude for what she has done,’ and he said: ‘I am going to pay her well for what she has done.’ . . . Q. Did you ever hear Clay say they was going to pay her for the services? A.- No, I never heard him say anything about it.”
Another witness named Tom Welborn testified:
At the conclusion of the evidence for the plaintiff the court, upon motion of the defendants, peremptorily instructed the jury to find and return a verdict for defendants, Andy and Clay Winn. Judgment being entered in accordance with the verdict, the Petries appeal.
We infer from statements contained in briefs of counsel that the trial court- concluded the facts in this ease brought it within the rule announced in the case of Armstrong’s Admr. v. Shannon, 177 Ky. 547, where we held that where relatives live together as one family for mutual convenience, neither can have a recovery for services or entertainment furnished the other except upon clear proof of an express promise or agreement to pay therefor. An implied contract is not sufficient to support such a claim. This ease, however, does not come within that rule, because the evidence for plaintiffs clearly shows an express agreement on the part of the defendants to pay for the entertainment and services performed for George Winn ■■ for which the defendants were liable. The evidence above quoted leaves no doubt that such an agreement existed. Of course, it is subject to be contradicted by evidence for defendants, but there was sufficient evidence to have warranted the trial court in submitting the case to the jury under proper instructions. It was the duty of Andy and Glay Winn to care for, lodge, feed, clothe and nurse the deceased, George Winn, and when they engaged the Petries to perform these duties for them, they were responsible therefor to the Petries, and the statutes ot fraud,' under the facts of this case, would not be an available defense.
Complaint is made that the court did not allow Mrs. Maude Petrie, wife of plaintiff, Ballard Petrie,
Upon another trial if the evidence is similar to that upon' the last trial, the court will submit the case to the, jury under proper instructions. Appeal granted and judgment reversed.