| S.C. | Jul 28, 1903
July 28, 1903. The opinion of the Court was delivered by Mrs. Harriet Seay was an aged lady, afflicted with sores of a cancerous nature, who lived at her own home with her son. In August, 1898, the son died, leaving her alone except for the servants on the place. After this time her daughter, the plaintiff, Mrs. Wessinger, who lived about three-fourths of a mile away, visited her very frequently, dressed her sores, and gave her such attention as it was possible for her to do with proper regard for her family duties. On January 7th, 1899, at the request of Mrs. Seay, Mrs. Wessinger took her to her own home and there nursed her devotedly until her death on the 24th of February, 1901. The sores were very malignant and offensive, and the services rendered involved great labor of a very unpleasant and repulsive kind, resulting in much physical discomfort and impairment of the health of the plaintiff. The plaintiff states the value of these services at $2,000. *243 These are in brief the allegations of the complaint in this action, brought by Mrs. Wessinger against the administratrix of the estate of Mrs. Seay. The complaint will be set out in full in the report of this case. No express promise is alleged. The plaintiff offered testimony tending to establish all the allegations of her complaint. The attempt was made on her behalf to elicit from Rev. C.P. Boozer, a witness, statements made to him by Mrs. Seay as to compensation for Mrs. Wessinger and her reason for asking to be moved to her daughter's house. This evidence was excluded, on the ground that the action was on an implied contract, that no express contract was alleged and none could be proved. At close of plaintiff's case, a motion was made for nonsuit, which was granted, the Circuit Judge holding there was a total want of proof to support the claim. The plaintiff appeals, alleging error in excluding the evidence above referred to and in granting the nonsuit.
We express no opinion as to whether the complaint sufficiently sets up an implied contract to pay for the services; for the reason that no such question was made in the Circuit Court or in this Court. On the contrary, the complaint was treated throughout the trial by both parties as alleging an implied contract, and for that reason it will have to be so regarded here. We have no hesitation, however, in holding the nonsuit was inevitable under the evidence before the Court. Services of the nature described by the witnesses, rendered by a daughter to a suffering mother, though very onerous, exhausting and unpleasant, are presumed to be given and received as expressions of self-sacrificing devotion. It is true, there was evidence to the effect that much of the service was rendered while the mother and daughter were not members of the same household: and there is high authority for the proposition that the presumption of gratuitous service prompted by affection alone does not exist in such case. 21 Am. Eng. Ency. of Law, 1063. We do not, however, assent to this view. The presumption that no charge is intended for *244 nursing and care bestowed by those closely connected in family life is based on the conception that such services ought to be, and usually are, freely given under the promptings of affection, which is not dependent on the circumstance of living in the same household. We think the better view is, while this fact tends to weaken the presumption, it will not of itself destroy it, and warrant the legal inference of implied contract to pay for such services, or even require the case to be sent to the jury; but where there is evidence of other circumstances tending to establish an implied contract, the fact that the mother and daughter were living in different homes might well be regarded as giving color and support to such evidence.
We are asked to hold that the presumption of gratuitous service does not extend to menial labor not usually performed by one member of a family for another. It is true, the nature of the service is an important factor in determining whether it is to be regarded gratuitous, but we see nothing in the testimony relating to the character of the plaintiff's services to warrant the inference that compensation was contemplated.
The presiding Judge excluded answers to the following questions which the plaintiff proposed to ask Rev. C.P. Boozer: "Did Mrs. Seay ever have a conversation with you in reference to herself and Mrs. Wessinger, the compensation to Mrs. Wessinger for it?" "Did you hear Mrs. Seay say anything about having requested her daughter to move her to her house?" "Did Mrs. Seay ever tell you why she had requested Mrs. Wessinger to move her to her house?" "What was the conversation?" (referring to a conversation which the witness said he had with the deceased in reference to her request to Mrs. Wessinger to move her to her home). Regarding the complaint for the purposes of this discussion as properly setting up an implied contract on the part of Mrs. Seay to pay for plaintiff's services, the important inquiry is, would any statement of Mrs. Seay which this witness could testify to in response to *245
the above questions be competent as tending to establish such contract? An implied contract can only be proved by showing the circumstances, and what the parties said and did in respect to their relations to each other. As was held in Exparte Aycock,
The judgment of this Court is, that the judgment of the Circuit Court be reversed and a new trial ordered.