Bergerson v. Mattern

170 N.W. 877, 41 N.D. 404, 1918 N.D. LEXIS 163

• Court: North Dakota Supreme Court
• Decided: December 31, 1918
• Status: Published

Opinions

Bronson, J.

This is an action to recover for services rendered by tb.e daughter to her mother during her last illness. In the trial court a verdict was returned by the jury for $1,750, and from the judgment .entered thereupon and from the order of the trial court denying a .motion for judgment non obstante, the defendant has appealed.

In substance, the record discloses the following facts: The plaintiff, a married woman, at her home for a period of two years and four months furnished her mother, who at the time of her death was aged eighty years, with exceptional nursing and care. The mother was .paralyzed, practically helpless, did not respond to nature’s calls, and needed the care and attention of an infant. She first came to live with her daughter in the year 19.08; she remained there for some two years, and then went to South Dakota for some nine months, on a visit, thereafter returning to the home of the plaintiff in 1911, where she stayed until her death. On July 25, 1913, she became paralyzed, and for some two weeks until September 5, 1913, a nurse was secured for her. Thereafter*, and until her death, she received the sole care and attention of her daughter.

The record amply discloses that the services performed were not only devoted and filial, but also burdensome, menial, and loathsome. The character of such services rendered showed high and efficient nursing. No express contract by the mother to pay for these services is shown. The evidence discloses the reasonable value thereof. •

Although the usual presumption is that services rendered by a child to its parent are acts of kindness and gratuitous, and do not create by their rendition an implied promise to pay therefor, nevertheless, where the services rendered are so exceptional and peculiar, and the surrounding circumstances such as to lead to the reasonable belief of an. understanding that pecuniary compensation should be made, a contract to pay therefor may be implied. Note in 11 L.R.A.(N.S.) 873, 879; 11 R. C. L. § 233; 18 Cyc. 412; 29 Cyc. 1620; Marietta v. Marietta, 90 Iowa, 201, 57 N. W. 708; Mark v. Boardman, 28 Ky. L. Rep. 455, 1 L.R.A. (N.S.) 819, 89 S. W. 481.

We are satisfied that the record presents evidence upon which an implied contract may so be found. The judgment of the trial court is affirmed.

Grace, J., being disqualified, did not participate, Honorable W. L. Nuessle, Judge of Sixth Judicial District, sitting in his stead.