Phinazee v. Bunn , 123 Ga. 230 ( 1905 )

Cobb, J.

1. Children being under a moral duty to nurse and care for their infirm parents, a promise to pay is not implied from the mere fact of service, as in case of strangers. But the performance of such service is a sufficient consideration for an express promise to pay. Hudson v. Hudson, 87 Ga. 678; Butler v. Billups, 101 Ga. 102; Weaver v. Cosby, 109 Ga. 310, 316. While a contract to pay will not be implied from the mere performance of the services, there are cases where the law will imply a contract by a parent to pay a child for services of the character above referred to. In Murrell v. Studstill, 104 Ga. 606, Mr. Justice Lewis said: “This court has never decided that on account of relationship, however near, there can be no recovery for services rendered by one relative to another without proof of an express contract.” In Hudson v. Hudson, 90 Ga. 581, it was held that a recovery may be had if an express contract be shown, or if the “surrounding circumstances . . indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of this relation.” This ruling was reaffirmed in O'Kelley v. Faulkner, 92 Ga. 522, though in that case the evidence was not sufficient to show that payment for the services was in the contemplation of both parties. See also Weaver v. Cosby, 109 Ga. 316; Walker v. Brown, 104 Ga. 361. In the cases of Murrell v. Studstill, 104 Ga. 604, and Hurst v. Lane, 105 Ga. 506, no express contract was shown, and it was held that the circumstances were such as to show that the parties contemplated that the plaintiffs (one a grandchild and the other a niece) should receive compensation for their services.

We hardly think the evidence in this case is sufficient to show an express contract. While sortie of the witnesses did say there was a contract between the plaintiff and her father, taking their testimony as a whole no express contract was shown. There was evidence that the plaintiff was thirty-five or forty years of age; that she nursed and cared for her father for a long period of time while he was stricken with paralysis, that she also hoed and plowed in the field for him during this time; that the father stated several times that he had given the plaintiff the “home place, or the money it would bring,” for waiting on him; that he had stated this in the presence of the plaintiff; that he frequently said the plaintiff must have pay, as she had earned it, and the plaintiff would make no response to the statement; that the father was taken sick in the fall of 1897, but made the statement in the spring of 1898 about wanting the plaintiff to have pay, and that he died about February, 3899; that the services performed by the plaintiff were worth $30 per month, and extended over a period of seventeen months. We think the jury could find, from the evidence, that, considering all the circumstances, both the father and the daughter contemplated she should receive compensation for the services rendered; especially so in view of the character of the services rendered. See Murrell v. Studstill, supra. The judgment refusing to grant a second new trial will not be interfered with. Civil Code, § 4936.

2. An examination of the interrogatories objected to shows that they were not leading. They did not suggest the answer expected. Franks v. Gress Lumber Co,, 111 Ga. 87. Besides, the allowance of leading questions is a matter within the discretion of the trial judge (Ga. R. Co. v. Churchill, 113 Ga. 14, and cit.), and his judgment will be reversed only where it is apparent that injustice has been done. City of Rome v. Stewart, 116 Ga. 738 (2), 740. Greater liberality should be allowed as to the form of interrogatories than in the case of ordinary questions to a witness when on the stand. Ewing v. Moses, 51 Ga. 419.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.