Switzer v. Kee

Mr, Justice Shoee delivered the opinion of the Court; The principal ground insisted upon for reversal in this court is, that the circuit court erred in refusing defendant’s eleventh instruction, which was as follows: “Where a child lives with a parent, or a parent with the child, the relationship between the parties is so intimate that the law does not imply a contract to pay money for support or services. Unless it be shown that there is an express contract to pay for such support and services, a recovery therefor can not be had by one of the parties against the other. In the absence of an express agreement the law indulges the generous presumption, that what is done for each other by parties thus nearly related is done gratuitously, and as the prompting of natural affection.” This instruction is copied from the opinion in Faloon v. McIntyre et al. 118 Ill. 275, and which, as applied to the particular facts of that case, was a correct statement of the law. In that case no express contract to pay for the support and services there claimed to have been furnished was shown, nor were any facts or circumstances proved from which such a contract could be legally implied. The law undoubtedly is, that where such relations have been voluntarily assumed by the parties, and there is no evidence of an express contract, or proof of facts and circumstances sufficient to show that it was intended by the parties, at the time the services were rendered or support was furnished, that pecuniary recompense should be made therefor, no implied contract will arise from the fact of rendering the services or furnishing the support, the presumption being that no compensation was intended. Thus, in Miller v. Miller, 16 Ill. 298, it was said: “Where one remains with a parent, or with a person standing in the relation of parent, after arriving at majority,, and remains in the same apparent relation as when a minor, the presumption is that the parties do not contemplate payment of wages for services. This presumption may be overthrown, and the reverse established, by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances which show that both, at the time the services were performed, contemplated or intended pecuniary recompense other than such as naturally arises out of the relation of parent and child.” And the court there held the law to have been stated with sufficient accuracy in the instruction given the jury, on behalf of the defendant, as follows: “That if plaintiff resided with her father after becoming of age, and was treated as a member of his family, then the jury must be satisfied, from the evidence, that at the time when the services were rendered it was expected by both parties that she should be paid for such services, or that the circumstances under which the services were performed were such that such expectation was reasonable and natural; that if she lived with her father, when such services were performed, as his other children did, it was incumbent on the plaintiff to prove an express hiring, or circumstances from which an express hiring may be reasonably inferred, besides the mere fact of performing the services; that the law, while the relation of parent and child exists, raises no implied contract.” (See, also, Brush v. Blanchard, 18 Ill. 46.) Ample authority sustaining this principle may be found elsewhere, but, in view of our own holding, its citation is unnecessary. In the case at bar, the mother did not reside in the family of her son, the defendant in error, but separate and apart from him, in her own home, and with sufficient means of her own to care for her and supply her wants. Owing to her helpless and critical condition it was deemed expedient and necessary to remove her to the home of defendant in error, in order that she might be properly cared for, which was done until her death, at great sacrifice on the part of her son and his family, and considerable expense. Had Mary Kee been living in the home of defendant in error as a member of his family a different question might have been presented, and the rule in Faloon v. McIntyre, supra, applicable, and no implied contract, have arisen from the mere providing of the support or furnishing the care or attendance upon her. But, as we have seen, even in such case an implied contract may be established by proof of facts and circumstances showing that it was the intention of the parties that payment should be made for the support or services furnished. We are of opinion that, as applied to the facts of this case, the court committed no error in refusing the instruction. The instructions given on behalf of the claimant conform to the views here expressed, and the modification of the second of defendant’s series given, brought it into harmony with the same views. There was no error in the modification of defendant’s seventh, eighth and ninth instructions given. The seventh and eighth told the jury that the claimant Could not recover for the care of his mother, if, at the time, he expected to receive his pay therefor by the use of her farm, or the farm in which she had a life estate and right of possession, and had no other contract with her. The effect of the modification was to hold that such expectation would not defeat recovery, if claimant was otherwise entitled to recover, if be had lost the use of the farm, or had been compelled to pay the value of such use, as rent for the entire time, by the heirs or personal representative of Mary Kee. It seems clear that if claimant was entitled, by contract, to the use of the farm as compensation for his services, and had been compelled to pay for the use of it by persons claiming under said Mary Kee, he would have a right of action over for the value of his services under the contract. The ninth instruction, as asked, told the, jury that claimant could not recover for services performed by his wife in caring, etc., for his mother, to which the court added, “unless such services were rendered by her as an assistant for Samuel Kee, and not with a view to a charge by the wife in her own name,” etc. The modification was entirely proper. It is objected that it is not based on the evidence, and was therefore erroneous. This is a misapprehension. The jury were clearly justified in finding, that whatever contract there was for the support and maintenance of Mary Kee was with the claimant, and that she was taken to his house to be there supported and cared for by him. While the wife may, under the statute, be entitled to her separate earnings, where she labors for another with the assent of her husband, she is not entitled to recover, in her own right, for services performed for him or in or about his business. The fact, therefore, that she may have assisted her husband in the care of his mother would raise no implied promise on the part of the latter to pay her therefor, and especially would this be so where she rendered them for her husband, and not with a view to make a separate charge. Hazelbaker v. Goodfellow, 64, Ill. 238; Casner v. Preston, 109 id. 531. On the whole, we perceive no substantial error in the record, and the judgment of the Appellate Court will be accordingly affirmed. Judgment affirmed.