Krug v. Mills

Digges, J., delivered the opinion of the Court. This appeal is by the plaintiff below from a judgment for costs on a directed verdict at the close of the plaintiff’s case in favor of the defendant. The suit is in assumpsit on the-' ⁶⁷¹ ■common counts by Frank Krug against Caroline Hills, administratrix of the estate of Frank Darmsteadt, deceased, for services alleged to have been rendered the deceased in his lifetime. The pleas of the defendant were the general issue pleas and a plea of limitations.

The single exception •contained in the record is to the action of the lower court in granting the prayers of the defendant which directed the. ver■dict. as above stated. These two. prayers challenged the legal ■sufficiency of the evidence on behalf of the plaintiff to sustain a verdict, and therefore we must assume the truth of the evidence offered by the plaintiff, together with all favorable inferences legally and properly deducible therefrom. In such ■a situation it is incumbent on us to examine the testimony in order to determine the correctness of the court’s ruling on the prayers. The two questions to be determined from the evidence are: First, does the evidence show that the plaintiff was a member of the decedent’s family; and, second, does the evidence prove or tend to prove such an express or implied contract between the plaintiff and the decedent as should have been submitted to tbe jury for its consideration?

Before reciting the facts, we will state what is the settled Jaw in Haryand as determined by previous decisions of this court. In order to justify a claim for services against a decedent, there must have been a design at the time of the rendition to charge, and an expectation on the part of the .recipient to' pay, for such services (Elosser v. Fletcher, 126 Md. 244 ; Jones v. Jones, 146 Hd. 19), or, as expressed in the case of Bantz v. Bantz, 52 Md. 693 : “In order to justify ,a claim for sendees being allowed against a decedent, there must have been a design at the time of the rendition to charge and an expectation on the part of the recipient to pay for the ■services. The services must have been of such a character •and rendered under such circumstances as to fairly imply ■an understanding of payment and a promise to- pay. There must have been an express or implied understanding between the parties that a charge for the services -was to he made, and .to be met by payment.” In Bixler v. Sellman, 77 Md. 496 , ⁶⁷² the court said: “Of course, it must he conceded that generally the law implies a promise to pay for services rendered and accepted; but a well recognized distinction exists where the-service is rendered by a member of the family of the person, served.

In the latter case a presumption of law arises that such services are gratuitous.” To like effect- are Wallace v. Schaub, 81 Md. 598 ; Gill v. Staylor, 93 Md. 472 ; Harper v. Davis, 115 Md. 349 ; Giering v. Sauer, 120 Md. 295 . It therefore appears that, if the party rendering the service is-not a member of the family of the decedent, the law implies-a promise on the part of the recipient to pay what such-services are reasonably worth. On the other hand, if the-party rendering the service is a member of the family of the-recipient, the law presumes such service to be gratuitous; and, in order to recover, the plaintiff must show an express, understanding at the time such service was rendered that he meant to charge for same, and that the recipient understood that he was claiming compensation; and, further, that the recipient intended to pay for same. In Jones v. Jones, supra, it was said: “The test is, Were1 the services for which compensation is being demanded rendered by one who is of the-same family as the recipient; family, as here used, meaning-a collective body of persons who form one household, under one head and one domestic government, and who- have reciprocal natural or moral duties to support and care for each other.”, In 2 Page on Contraéis, 1183, sec. 778, the author,, citing Bixler v. Sellman, supra, says: “Persons who live together as members of the same family and render personal-services each to the other generally do so from motives of affection and not because of the expectation of a financial reward therefor.

Accordingly, the mere rendition of personal services between persons so situated does not establish a liability on the part of the person receiving such services-to make compensation to the person rendering them, even though the services may be performed at the express request of the person receiving the benefit thereof, or may be voluntarily accepted by him.” In Pearre v. Smith, 110 Md. 531 , ⁶⁷³ it was said: “In our view, although the appellee was not a blood relation of the decedent and his sister, she should, upon the undisputed evidence in the case, be regarded as having been a member of his family. The word ‘family’ is often used in a restricted sense to> describe a group of persons connected by ties of kindred, such as parents and children, but it has a variety of meanings according to the connection in which it is used, and it should be so construed in each case as to give it the significance appropriate to its use.” Webster defines the word “family” to be a collective body of persons who live in one house and under one manager; and that meaning has been approved in many cases. Bowner's Law Dictionary, vol. 1, p. 758, says that “in common parlance the family consists of those win live under the same roof with the paterfamilias,” and also' cites different cases as authority for the definition of the word “family” as taken from Webster. The words “family” and “household” are often interchangeably used.

In Pearre v. Smith, supra, it was held that the plaintiff was a member of the decedent’s family in accordance with the definitions above set .forth, even though she was of m> blood relationship; and, conversely, it has been held by this court that persons who were closely related by blood were not members of the same family so as to raise the presumption that services rendered by them were gratuitous. In Gill v. Staylor, supra, the relationship was that of nephew and uncle; and in Neudecker v. Leister, 132 Md. 571 , and Bouic v. Maught, 76 Md. 440 , cases of aunt and niece, it was held that such blood relationship did not make them members of the same family. In the last-mentioned case the court said: “It is not to be inferred simply from the relationship that existed in this case between the parties that the services were intended to be gratuitous and were rendered with m> view of compensation.” In the Neudecker case this court said: “It does not seem to us that the services thus rendered should be regarded as presumptively gratuitous. The kinship of Mrs. Keudecker to her’aunt was ⁶⁷⁴ ■not sufficiently close of itself to create such a presumption.” The question, therefore, is not one of nearness of blood kinship, but whether or not the party rendering the service is a member of the family of the decedent, as the word family has been defined and construed by former decisions of this •court when dealing with this class of cases.

With the law being thus firmly established, the question is: Does the evidence in this case constitute the plaintiff a member of the decedent’s family? We think it does. The record shows that the plaintiff is the nephew of the •deceased; that the uncle owned a house and parcel of ground on the water front in Anne Arundel County; that the plaintiff in 1911, when he was thirteen years of age, was living with his mother in Baltimore City; that the uncle was at that time living alone, and desired his nephew as a companion. The mother of the plaintiff was told this by the uncle, and she was asked to allow the uncle to take the boy to his home to live.

This the mother was satisfied tO' do, she knowing, as she states, “he was taken care of.” In addition, the deceased was the boy’s godfather, and, from the time in 1911 when the boy went to live with the uncle, acted as a father and “was very good and kind to him.” The mother never visited her son from the time she turned him over to the uncle in 1911 until the summer of 1928. The uncle gave the plaintiff his board, lodging and clothes; the plaintiff lived in the same house with the uncle, each doing a part of the household work, and the boy assisting the uncle in crabbing and fishing, which appears to have been the principal occupation of the deceased. It is apparent from the record that the mother regarded her son as a member of the uncle’s family, for she says, “they just lived to themselves as one family,” speaking of her son and his uncle. The plaintiff had three brothers and one sister, who lived at home with their parents.

The plaintiff left his uncle in December, 1919, and sought employment elsewhere, at which time he was about twenty-one years old. During the period of about nine years, from the time of his arrival at twenty-one years of age to the time of ⁶⁷⁵ Ins uncle’s death, the plaintiff worked for several different employers, one of whom was Mr. Thom, who owned a farm in AnneoArundel County a short distance from the home of the uncle. His service for Mr.