Affirming.
This is a companion case to that of Cheatham's Ex'r v. Parr,
The petition in the present case alleges in substance that on August 26, 1941, decedent, Fannie P. Cheatham, sister of appellees, left the home of their brother George and came to the home of appellees where she remained until October __, 1941, at which time she returned to George's home; that on May 1, 1942, she again returned to the home of appellees and remained until her death on March 9, 1946; that all this time was spent in the home of appellees at the request of decedent and with the understanding and agreement that they would look after and take care of her and that she would pay them well for such care and treatment; that appellees nursed and cared for decedent and furnished her laundry for 206 weeks and that the reasonable value of said care and nursing service was $35 per week and for said laundry $3, per week. They pray judgment against her estate for $7,828 and costs. A denial made up the issues.
Upon a trial of the issues involved this jury returned a verdict for $6,000 in favor of appellees. Motion for a new trial was overruled and from a judgment based on that verdict, this appeal is prosecuted.
I. We recognize the general rule as laid down by numerous cases decided by this court that where parties occupy toward each other a family or domestic relationship and where they occupy the same house and render mutual services for the benefit of all, there will be no implied contract raised in favor of any of them against any of the others for compensation for such services. *Page 186
It is also a recognized rule in this character of case that independent of all relationship it is competent for the parties to contract for compensation for the services to be rendered and when there is an agreed price it may be recovered and if there is no agreed price then recovery may be had for the reasonable value thereof. All the cases hold that in order to establish an express contract, it is not necessary that the evidence should prove a categorical promise by the recipient to pay for and a like agreement by the performer to render the services upon that promise. On the contrary, if the proven facts and circumstances are such as to fairly show that both the party rendering the services and the one receiving them expected, understood and intended that compensation would be made, then the court or jury trying the case would be authorized to find an express contract for payment. DeFever's Executor v. Brooks,
After a careful reading of all of the testimony on this phase of the case we think it falls well within the doctrine of a "contract implied in fact" as laid down in Kellum v. Browning supra (
"Although not hitherto so denominated by this court, what we have been considering is often called a 'contract implied in fact.' It requires an actual agreement or meeting of minds although not expressed. It is implied or presumed from acts or circumstances which, according to the ordinary course of dealing and the common understanding of men, a mutual intent to contract is shown. 6 Rawle C. L. 587. In this class of cases, death has silenced the voice of one of the parties to the transaction, and the law seals the lips of the other. But as guilt of crime may be established by proof of circumstances, and a tort be inferred from conditions, so may the existence of an agreement or contract, as we have shown, be deduced from proven facts. Thus it is said in Peters v. Poro's Estate,
" 'The terms "express contract" and "contract implied in fact" indicate a difference only in the mode of proof. A contract implied in fact is implied only in that it is to be inferred from the circumstances, the conduct, acts, or relation of the parties, rather than from their spoken words.' *Page 188
"In other words, from the facts disclosed the court concludes that the parties themselves had entered into an agreement respecting them, although there is no evidence of an express offer and a definite acceptance."
The facts in this case with reference to family relationship clearly distinguish it from those in Gayheart's Adm'r v. Gayheart supra, cited by appellant. There the parties were all living together in a close family relationship, each contributing work or money to the common cause and each receiving the mutual benefits from the joint efforts. In the case at bar decedent had a home of her own where she had lived alone until through old age and illness she was unable to continue to do so. She then went to the home of appellees where she remained nearly four years, requiring almost constant nursing and attention, contributing only $5 per week toward purchase of necessary food and supplies. It could not be said that this was of any advantage to appellees whose normal lives and activities were interrupted by the attention needed by their sick sister who had an ample estate of her own and was well able to pay for such services and assistance as she required.
It is well settled in this state that for services rendered that are not personal, an implied contract will arise to pay for them even in favor of one occupying family and domestic relationship. Kellum v. Browning, supra, and DeFever's Ex'r v. Brooks, supra. Among non-personal services are washing, ironing and other similar matters not included in such services as nursing. The proof in this case fully establishes that appellees did all of the laundry work for decedent during her stay in their home and recovery on this item seems not to be seriously objected to by appellants.
II. Was the verdict of the jury shockingly excessive? The proof for appellees shows the reasonable value of the laundry services rendered to deceased by appellees was from $3 to $4 per week which for a period of 206 weeks totals $600 to $800 for this item. There was no evidence to the contrary. As to the value of the nursing services rendered deceased by appellees, this was fixed at $42 per week for the services of both appellees by the doctor who waited on decedent during all this time. This doctor, who had had over fifty *Page 189 years' experience in his profession, further testified that a charge of $35 per week for this item, which is the amount claimed in the petition, would be reasonable. The only proof introduced by appellants on this question was the manager of the local hospital who testified that at that time the rate in his hospital was $3.50 per day in the wards which included board and the regular nursing service. This did not include special nurses. This rate was increased to $4 per day in 1942, and patients requiring constant care were not accepted after 1944, unless they had a special nurse.
Clearly the value of the services rendered decedent was one for the jury and since the verdict of the jury was less than the proven reasonable value of the services and less than the amount claimed and since the questions of fact were submitted to the jury under proper instructions which are not objected to on this appeal, we cannot say that the verdict of the jury is excessive.
Judgment affirmed.