Alred v. Alred , 36 Ga. App. 748 ( 1927 )

Broyles, C. J.

1. Under the ruling of the Supreme Court in this case (164 Ga., 137 S. E. 823), in answer to a question certified by this court, the motion to dismiss the bill of exceptions is denied.

2. “Ordinarily, when one renders services . . valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof; but this presumption does not usually arise in cases between very near relatives.”

3. “In order to authorize a recovery by a son against the estate of his deceased father for services in the nature of care and attention to the latter while old and infirm, it must affirmatively appear either that the services were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly 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, which arose out of the relation existing between them.” O’Kelly v. Faulkner, 92 Ga. 521 (17 S. E. 847), and cit. This ruling is applicable to the instant case, where a father sought a recovery from his son for services in the nature of care, attention, and support of a minor child of the defendant, and the grandson of the plaintiff.

4. Under the rulings stated above in paragraphs 2 and 3, and the facts of the instant case, the court erred in refusing to comply with, the timely and appropriate requests to charge set forth in grounds 1, 2, 3, 5, and 6 of the amendment to the motion for a new trial. The court erred also in charging' as set forth in ground 8, for the reason stated in subsection (c) of the ground. It follows that the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur. Porter & Mebane, for plaintiff in error. M. B. Eubanks, contra.