Keiger v. . Sprinkle

ClabksoN, J. At the close of plaintiff’s evidence and at the close of all the evidence, the defendants made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and- in this we can see no error. The evidence on the part of the plaintiff, taken in the light most favorable to plaintiff with all reasonable inferences, was to the effect that the defendants’ intestate, J. B. Sprinkle, was 86 years of age when he died. His death occurred at the home of plaintiff, where he had been in declining health for several years prior to his death, and had been in bed 30 or 35 days before he died. He died on 13 February, 1933. The plaintiff was a daughter of J. B. Sprinkle, married and had her own home and family, and was living separate and apart from her father, J. B. Sprinkle. For about six years before his death he lived nearly half of each year with plaintiff, who took care of him and spent several hundred dollars for extra food, medicine, etc. The defendants denied the material allegations of the complaint, pleaded payment and the statutes of limitation. Beulah Keiger testified, in part: “I am a daughter of Mrs. Minnie C. Keiger and Mr. J. B. Sprinkle was my grandfather. Mr. Sprinkle was there in our home during the winter months all the time for the last three years I know of. My mother waited on him some and so did I. My mother just looked after him like a nurse would, cleaned his clothes and his bed for him and never would let him go out by himself unless one of us went with him, because he wasn’t able. I have heard my *735 mother up at nights attending to Grandpa. She would clean his bed. . . . My mother gave him the front bedroom, which was my mother’s and father’s room. My mother furnished the coal. She bought him lettuce and fish and other vegetables that he could eat. He couldn’t eat the same things we did. I saw my mother purchase those things and I bought some myself. My mother paid for those she bought. Sometimes I would give my mother money, and my brother, J. Lee Keiger, gave her money. He works at the Indera Mills, is secretary and treasurer. I have seen my other brother give my mother money also. My mother laundered my grandfather’s clothing and bed linen,” etc. The testimony of other witnesses was to the same effect. There was evidence that the value of the services rendered was as much as $25.00 a week other than extra food, medicine, etc.; that J. B. Sprinkle, several years before he died, in talking about his feebleness, told Mrs. A. J. Duke “that he had made arrangements with Mrs. Keiger (the plaintiff) —Minnie he called her — for her to have pay, and be well paid for what she had done for him and was doing on. . . . He would rather stay there with Mrs. Keiger for she was good and kind to him; that she had been better to him and done more for him than all the rest.” O. L. Loflin testified, in part: “Mrs. Keiger gave up her room to him when he was so he couldn’t be up and about, and she did the most of the washing of his bed linen, which was in very bad condition, etc. It was in the last three years she waited on him like that, anywhere from five to seven months in the year, when he would be in and out from there. The best I remember, the last time I had a conversation with him relative to seeing Mrs. Keiger repaid was in the fall, some time not far from the time he attended that corn shucking, the fall before he died. I know they had to buy some things for him to eat. He couldn’t eat things like the others in the family. I have never seen anyone attending on Mr. Sprinkle in her home but Mrs. Keiger. Mrs. Keiger bought medicines for him. In my opinion, the value of the special diet and medicines would be from six to eight dollars a week, and for her services from fifteen to twenty dollars a week. I have no interest in this case.” In Hauser v. Sain, Admrs., 74 N. C., 552 (555-6), the trial court charged the jury: “That if there was no special contract as to the services, that as the plaintiff was some twenty-six or twenty-seven years old when the last services within the statute of limitations were rendered, the law raised a presumption of a promise to pay what the plaintiff’s services were worth, and that this presumption was not rebutted by the relations of the parties or the circumstances of the case.” This Court said (at p. 556) : “In regard to an implied contract, we see no error in the charge. When one person renders service to another, the law implies a promise to pay what the services are reasonably worth. *736 This is admitted to be tbe general rule, but it is insisted for the defendant that the relation of granddaughter and grandfather rebutted this implication and imposed on the plaintiff the burden of proving an express contract; otherwise, it will be presumed that the services were rendered gratuitously. We can see no reason for this doctrine.” Wood v. Wood, 186 N. C., 559; Brown v. Williams, 196 N. C., 247; Lipe v. Trust Co., post, 794. Under the facts and circumstances of this case, there is no presumption of gratuity. Rule 28 (200 N. C., 831), in part, is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” Many exceptions and assignments of error made by defendants, in accordance with the above rule, are abandoned. The court below charged the jury as follows: “Now, gentlemen, if upon all the evidence the plaintiff has satisfied you by the greater weight of the evidence, giving due heed to the presumption heretofore called to your attention by the court, if the plaintiff has satisfied you from the evidence, and by its greater weight, that she rendered valuable services and services of any considerable magnitude to her father during the last years of his life, while he was in her home, and he received those services voluntarily, accepted them knowingly, then the court instructs you that, nothing else appearing, a presumption would arise that he intended to pay, and that the plaintiff performed the services with the expectation of receiving pay for those services, and that an implied contract would arise in favor of the plaintiff and against the administrators of the estate of J. B. Sprinkle, deceased (and unless you should further find from the evidence, and by its greater weight, or from circumstances, that the presumption has been overcome and that there was no intent to pay on the part of the deceased, or you should find that there was no expectation of payment, then the court instructs you that you would be authorized in answering the first issue ‘Yes’).” To the above in parentheses, defendants excepted and assigned error. All through the charge many times the court placed the burden of the issue on plaintiff. Later the court charged the jury: “The court has heretofore instructed you — and you will consider this as the final instruction with reference to this first issue — if you find from the evidence, and by its greater weight, the burden being upon the plaintiff, that she in her own home rendered services of considerable magnitude to her father, and that he knowingly received those services and knowingly accepted those services, then the court instructs you there would be a presumption of an implied contract, that is, there would be a presumption that he intended to pay, and that she intended to charge for the services that she *737 rendered and, nothing else appearing, sbe would be entitled to recover tbe reasonable value of those services such as' she rendered within the time heretofore specified and referred to by the court, provided such services had not been paid for.” We think that “and by its greater weight” an inadvertence, and cured by the “final instruction” on the issue; at least, there is no prejudicial or reversible error. The exception and assignment of error as to the time which plaintiff was entitled to recover cannot be sustained. The slight mathematical calculation made by the court below as to the length of time for which plaintiff was entitled to recover was not called to the attention of the court, so the oversight could be corrected. Davis v. Keen, 142 N. C., 496 (502); Sears v. R. R., 178 N. C., 285 (287). If error, we do not think it prejudicial or reversible. The last exception and assignment of error was to the effect that the amount of recovery should be based on the claim filed with the administrators. We do not think this exception and assignment of error can be sustained. The plaintiff sued for $2,500, but had rendered an itemized bill to defendants for $2,550. This bill was in evidence for the jury to consider. Taking the verdict based on the evidence as to the value of services rendered and money spent for extra food, medicine, etc., furnished for the period recovery was allowed, we think there is no prejudicial or reversible error. For the reasons given, in the judgment of the court below we find No error.