NISSEN FLOURNO.k. 311 . NISSEN V. FLOT,TRNIDL-, • , • ; . • • ..•-■ • • / o Opin ; ion' 'delivered OctOber 8, 1923. 1. WORK' AND LABOR—IMPLIED ' CONTRACT TO PAY, I FOIL. ■ANOTAER'S , sERvics. , =In an;action by a sister against,her brother'a estate to , recover for taking care of him , .f ,years„ iwas , error,, instruct the jUry that ahe Could not recover without establishing _ a special 'or expreg s Proinis • e , 'th ,1 pay he , r t ,a h ji • d th 1 a ;4 t the law esuines, in their relationshiPY- that the serliiees rendered‘ by her to her brother Were gratuitous.1: • '—)fr, 2. WORK AND LABOR—SERVICES OF MEMBER OF FAlViliYJURY QUES;= TION.—Though ,the, law generally implies, a l contract to, (pay for another's services, such implication does not arise as a matter of laW where' the' parties live together: in the farnily, relation; but Case - it' ia a 'question ' .fo .r Ith1 jUryW' deter/nine from all the surrounding circumstances , kikliether the :geririOa were ( rendered; under ,an implied contract ,to ,pay ( for,kthern.‘„ ' Appeal from Prairie Cir ' c u • it f C • ou , r 4 t, S , o , u ) th ern tlis•-- , ; oeo6e -47 :'C , l4k, , J • udge; reyersed. ) STATEMENT . OF FACTP,. if Eva Baw Nissen,filed her claim in the isumof $4',7,00 against the -estate. of her, brother,._ Otis,',G.iBaw-,,,deceased; in, the -form ,of a complaint in-the probate coUrtoin.sub,-. stance,-for the support of her brother fOr t dbotiti ,five iYeat's before his death. , ,,To this ,there ,was,a, generA denial by theadministratrix of ,her, brother's, estate. - ■ ` •) 311.$ ':10r' Upon the, trial i ef, her contested claimin-ithe,,probate court2there was a judgment inilerlaxorcfor-;theianiount claimed bY,her: There was an appeal to i the circuit, court, where ,the . case , was. tried, before :a jury uponAsubstan,, tially the, following evidence : Otis G-. Baw was a railroad brakeman, and ,hdd both of his legs cut 'off above , the _knees„in-1911:, ,-The., railroad company paid him- $18,000, as rdamdges ion) decouht of his:injury.. He was placedMI a bospitaliforrsOrnertinie after he received his injUries; and; then-went,KO livé -With his 'sister, Eva Bdw Nissen, at, her homain Prairie , .Coun. : ty, Arkansds. ; He lived with' her for overofiye--1,years; until the -date, of his 'death on,,the1-2d;day otiflectinher,
312 NISSEN 1). FLOURNOY. [160 1918. During most of this time Baw suffered pain which rendered him very nervous and irritable. His physical condition was such that he required a great deal of care and attention, which was bestowed upon him by his sister. He told several people, at different times, who came to see him, that he intended that his sister, Eva Baw Nissen, should have all of his property that was left after his death. He had no wife or children. His sister would have inherited one-half . of his estate and the" defendants the other half. The jury returned a verdict in favor of the defendants, and from the judgment rendered upon the verdict the plaintiff, Eva Baw Nissen, has duly prosecuted an appeal to this court. J. F. Holtzendorff and Trimble & Trimble, for appellant. The court erred in instructing the jury that any service under any circumstances rendered by a sister to a brother is gratuitous. Where a relative accepts services from another under circumstances which render an implied contact to pay therefor, the law will imply a contract to pay the reasonable value of such services. 75 Ark. 191 ; 82 Ark. 136 ; note 11 L. R. A. (N. S.) 873. Geo. W. Emerson and Cooper Thweatt, for appellee. Where the parties are members of the same family, the presumption is that the services were rendered gratuitously. 56 Ark. 385 ; 40 Cyc. 2823 ; 4 Pa. Co. Ct. 177 ; 30 Mo. App. 176 ; 67 N. W. 37. Objection to the verification of a Neading cannot be taken for the first time on appeal. C. & M. Dig., § 1246 ; 88 Ark. 433 ; 71 Ark. 609. HART, J., (after stating the facts). The errors complained of are that the court erred in instructing the jury. Without quoting the language of the charge, it May be said that the court, in effect, told the jury that the plaintiff could not recover without establishing a special or express promise to pay her. The court also told the jurY that the evidence showed that the relationship be-
ARK.] NISSEN V. FLOURNOY. 313 tween the claimant and the deceased was sister and brother, and that, where this relationship exists, the law presumes that the services were rendered gratuitously and without compensation. We are of the opinion that the court erred in its instructions to the jury. It is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another's services; the law implies a previous request and a subsequent promise Ford v. Ward, 26 Ark. 360. It is also an elementary principle of law that the contract wbich the law ordinarily implies to pay for services and maintenance is not presumed between parent and child, or in any other case of near relationship where the parties live together and create the family relation, and this well-known exception to the general rule has been recognized by this court in the following cases: Hogg v. Laster, 56 Ark. 362; Lewis v. Lewis, 75 Ark. 191, and Williams v. Walden, 82 Ark. 136. A careful reading and consideration of the decisions just cited leads us to the conclusion that, in all such cases, it is a matter for the jury to determine, from all the surrounding circumstances, whether the services were rendered under an implied contract or not; and this doctrine we consider to be according to the better reasoning on the subject. While, in a case like this, no contract can be said to be implied by law or implied as a matter of law on the ground that a legal obligation exists because the services have been performed, still a contract may have been found to have existed in fact from all the circumstances and conditions proved. It was incumbent upon the plaintiff to show that she performed the services which were at the foundation of her claim, expecting, at the time, to be paid therefor, and that her brother so understood it, or that, under the circumstances, he had sufficient reason to believe that she expected pay for her services.
314 NISSEN 'V. FLOURNOY. 1160. A leading case On the question, and one which ,is frequently cited, is Guild v. Guild, 15 Pick: (Mass.) 129. In that ease, the matter was well summed up by S4Aw, C. J., as follows : "But the court .are all of, opinion that practically the question is of much less importance than at first Vie* it would appear. ThoSe who 'think that die law raises no implied promise of pectiniarY Qom-PensatiOn,' from the 'mere perforniance . 'of useful and ahlable services,. tinder 'the circirmstances supposed; are rievertheless, of Ppinion'that it would be quite competent for the jury to infer a promise, from all the : circurri-stances. of, the, case; and although_the burden of proof is,upon the,plaintiffi as in other cases, to show an implied promise, the jury, pught. to .be instructed, that if, under all the circurristances of the case, the serviCes . were of such a nature ,as to lead . to a reasonable belief :that it was the understanding of the parties that ,pecuniaty cora-pensation Should be made for them, then the- jury should find un implied promise,' and a quantum vieruit; but, if,. otherwise, then Ahey,:should find that there WaS RO plied , ;promise. " NO , hard and fast rrile can be laid doWn, -and every Case must be goVerned , by its peculiar circumstanCeSrl Il'is , iiicUmberit upon the claimant to shoW that, at the time the' services'were rendered, it was exPected bY both parties that she should receive .. cOmperisatiori,, but she, May shOw this by circunistantial as well as by direct-evidence.„ Ali the surrounding , circuniStanceS under Which the- servieeS Were' , perforined may be tIrOved: It Tesults from our- vieWs that the coUrt erred in substantially telling the , jury that , the claimant can only recover upon an express cOntraCt; and 'that the relationship of, brother and . sister raises a presumPtion at law that tbe services Were gratuitously rendered.' • Therefore the judginent hirist be reVersed, arid the: be remanded for a n6w trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.