Sherry v. Littlefield , 232 Mass. 220 ( 1919 )

Rugg, C. J.

This is-an action of contract by a daughter to recover compensation for services rendered for care, nursing and housekeeping from the estate of her deceased mother. The. case was sent to an auditor, whose report was in favor of the defendant. The defendant moved for judgment in accordance with the auditor’s report. “The counsel for the plaintiff objected and stated to the court that he had material testimony present, other and different from what he was able to secure at the hearing before the auditor, and that he desired the court to hear such testimony. The court thereupon stated that it would hear such testimony that either side might desire to introduce, and ruled that such evidence as the plaintiff’s counsel proposed to introduce would be cause to stay the entering of judgment on the auditor’s report and overruled the defendant’s motion.”

In this there was no error. The defendant relies upon Rule 31 of the Superior Court, 1915. The judge correctly ruled that he would hear the evidence. He could not properly have denied the plaintiff a right to present her evidence to him under all the circumstances or have refused to hear and decide the case upon all the evidence. R. L. c. 165, § 55, as amended by St. 1914, c. 576, § 2.. The auditor’s report was only prima facie evidence. While, if it is uncontrolled by evidence, a finding may be required according to its findings, Wakefield v. American Surety Co. of New York, 209 Mass. 173, such finding cannot be ordered on the report alone when there is other evidence in conflict with it. Rule 31 of the Superior Court was before this court in Farnham v. Lenox Motor Car Co. 229 Mass. 478, where it is quoted and some of the limitations to which it is inherently subject were discussed. The proffer of evidence by the plaintiff in the case at bar was cause shown for hearing the parties within the meaning of that rule.

There was no error in the omission or refusal by the judge to frame issues to be tried by himself. The issue was a narrow one and was made perfectly clear by the pleadings. That part of the rule does not apply under the circumstances here disclosed.

The oral testimony introduced by the plaintiff before the judge might have been found sufficient to outweigh the adverse effect of the auditor’s report. Taken at its face value it amounted to an express promise by the defendant’s intestate to pay to this plaintiff reasonable compensation for her services.

There was no error of law in the refusal of the defendant’s requests for rulings. It was sufficiently favorable to the defendant to rule that the presumption was that the plaintiff’s services were gratuitous and that the burden was upon her to overcome that presumption. A further ruling was made that the plaintiff could. prevail only by showing that it was understood both by her mother and herself that she should be paid for her services.

There was evidence sufficient to support a finding for the plaintiff under these rulings. There was testimony to the effect that there was a direct promise by the defendant’s intestate made to the plaintiff to pay her.

Although the intestate was a married woman living with her husband, whose duty it was to provide her with the kind of service rendered by the plaintiff, she nevertheless might bind her separate estate therefor. Charron v. Day, 228 Mass. 305.

The plaintiff was a minor at the beginning of her period of service. She previously had worked away from home and apparently had received her own wages and had saved something, which she had deposited in the savings bank in her own name. This with the other evidence was sufficient to warrant the inference that, so far as concerned this matter, she had been emancipated and was entitled to maintain an action in her own name.

The fifth request for a ruling, to the effect that the plaintiff was a minor during a part of the time for which the plaintiff sought to recover, was a request for a finding of fact rather than a ruling of law, but if treated as sufficiently amplified to constitute a request for a ruling that she could not recover for services during minority, it was refused rightly. Wood v. Corcoran, 1 Allen, 405. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550.

Exceptions overruled.