Landreth v. . Morris

Sbawell, J. Noting the exceptions to the evidence brought forward in the brief, we are of the opinion that the testimony of witnesses, with only the common experience derived from a familiarity with living conditions and observation of the services of the character alleged to have been performed for the intestate, was competent as to the value of those services in the community in which they lived. The defendant’s exception to admission of this evidence is without merit. The defendant relies upon the evidence tending to show the existence of family unity and the relation of the plaintiffs to the intestate as rebutting the presumption of an implied promise to pay for the services rendered by plaintiffs, and replacing it with the presumption that the services were gratuitously rendered. Winkler v. Killian, 141 N. C., 575, 579, 54 S. E., 540. In the cited case it is said, quoting Ruffin, J., in Williams v. Barnes, 14 N. C., 348: “It cannot be possible that the head of a harmonious household must drive each member off as he shall arrive at age, or be bound to pay him wages or for occasional services, unless he shows that it was agreed that he should not pay.” The opinion quotes further, with approval, from Dodson v. McAdams, 96 N. C., 149, 154: “. . . This rule is founded in large measure upon the supposition that the father clothes, feeds, educates, and supports the child, and that the latter labors and does appropriate service for the father and his family in return for such fatherly care and domestic comfort and advantage. The family relation and the nature of *623 the service rebut the ordinary presumption, that arises when labor is done for a party at his request, express or implied, of a promise on his part to pay for it.” Further analyzing Winkler v. Killian, supra, we find the following: “In Young v. Herman, 97 N. C., 280, it is held: £(1) When a child after arrival at full age continues to reside with and serve the parent, the presumption is that the service is gratuitous. (2) But this presumption may be rebutted by proof of facts and circumstances which show that such was not the intention of the parties, and raise a promise by the parent to pay as much as the labor of the child is reasonably worth.’ Again, in Callahan v. Wood, 118 N. C., 752, quoted in this case, we find: ‘We do not put our decision entirely on the kinship relation, hut also on the one-family relation established and maintained by the parties! ” The presumption arising out of the family unity and the relation of the members of the family to each other must necessarily yield to evidence indicating that the modus vivendi of the family is different from that which gives rise to the rule. The presumption is affected by the family vicissitudes and those changes in the composition and relationships of the group which are apt to come when it contains adult members who have their own separate responsibilities, both moral and legal. The “unity” of which the presumption speaks means more than living in the same house and eating off the same table. It signifies that reciprocity of service which might be expected of a typical unbroken family, or one which has been reunited in the same relationships. In the case at bar the evidence, taken in its most favorable light for the plaintiffs, shows that young Landreth, one of the plaintiffs, had attained the age of twenty-one years, married, and moved away, entirely breaking his connection with the family, and assuming other paramount duties and obligations to his own separately established family. The intestate had sold all of his personal effects except a “half bed,” some trunks, and a gun, and had gone to live with a son-in-law. Seven children lived at various distances, from eight to ten miles, and these visited him infrequently. Not a vestige of family organization remained. The plaintiff Gurthie Landreth and his wife moved to the old place, carrying their furniture, stock, and farm implements, under a rental agreement which intestate might have made with a stranger; and the evidence, although conflicting, will support the finding that the rents were paid up to the time of intestate’s death. The facts of this case are not consistent with the philosophy which is said in Winkler v. Killian, supra, to underlie the presumption of gratuitous service. As to the feme plaintiff, the daughter-in-law, we note the rule that in this State the fact of “family unity,” of itself, is not sufficient to give rise to the presumption of gratuitous service; there must also be a cer *624 tain relationship between the parties from which it may be supposed the services were referable to some moral or legal duty which the servitor recognizes as impelling. When the law goes outside the law for a rule of civil conduct based on those moral considerations which society imposes on its members as both commendable and compelling, it must be content with what it finds. It cannot be said that usage in this State recognizes the moral responsibility of a daughter-in-law, or a son-in-law, to such an extent as to raise a ju'esumption of gratuitous service arising out of that relation. The presumption is adopted in Callahan v. Wood, supra, repudiated in Dunn v. Currie, 141 N. C., 123, 53 S. E., 533; ignored in Henderson v. McLain, 146 N. C., 329, 59 S. E., 873; and denied in Nesbitt v. Donoho, 198 N. C., 147, 150 S. E., 875. In that state of the law we see no reason to apply to the feme plaintiff, by whom the major part of the service was rendered, a rule which smacks more of the story of Buth and Naomi than it does of the common law. The presumption of gratuitous service is too precariously seated on the evidence in this case to justify its application as a matter of law. The circumstances under which the family relations were resumed, if at all, and what these relations were, and what significance might be attached to them, were matters for the jury. We see no reason to disturb the verdict. Upon the record we find No error.