Opinion
No. 32581.
February 15, 1937.
EXECUTORS AND ADMINISTRATORS.
Evidence held to establish that claimant was entitled to $20 per week for 30 weeks and 4 days for services as practical nurse rendered to deceased during his last illness.
APPEAL from chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
L.C. Gwin, of Natchez, for appellant.
We submit to the court that not only is the unexplained fact that appellant demanded no compensation of decedent's family insufficient to establish the non-existence of the contract proved by appellant but that the failure of appellant to demand any compensation from decedent's family was the only reasonable and proper action for her to take under the circumstances.
We submit that if appellant made no demand upon the family of decedent for her compensation that such a failure would only normally be dictated by an instinct for that which is fitting and proper, and was only a natural showing of respect from one of appellant's station in life toward one of appellee's.
Gaulden v. Ramsey, 85 So. 109, 123 Miss. 1; Loviza v. Lynch, 76 So. 629, 115 Miss. 694.
Under the strictest requirement of clear and positive proof and put to the most stringent test, the testimony herein of the appellant is sufficient in law and in fact to establish the rendition of the services and a promise to compensation therefor at a stated wage.
It (the law) never presumes dishonesty, mental incapacity, fraud, undue influence or any other matter tending to vitiate a contract, but always requires proof of facts from which such dishonesty, mental incapacity, fraud, undue influence or other matter may be reasonably inferred.
Wherry v. Latimer, 60 So. 642, 103 Miss. 524; Clay v. Allen, 63 Miss. 426; 13 C.J., 760, sec. 947; Merrill v. Melchoir, 30 Miss. 516; 2 A.L.I., Restatement of the Law on Contracts, sec. 589.
The contract entered into in the instant case was not unconscionable nor unfair. The compensation contracted for was less than the usual charge for like services according to the undisputed proof of a witness familiar with such matters, and certainly the deceased received value for his promise of payment, according to the undisputed proof of appellant's witnesses, the white neighbors of deceased, who had the opportunity of observing her performance of said contract.
Burnett v. Smith, 93 Miss. 566, 47 So. 117; Gillis v. Smith, 75 So. 451, 114 Miss. 665.
Clay B. Tucker, of Woodville, for appellee.
The law is that all claims for personal services rendered a decedent must be shown by positive evidence that such services were to be paid for under a contract, expressed or implied. The burden of proof here being on the appellant to establish her claim for an agreed compensation of $20.00 a week for thirty (30) weeks and four (4) days, carried not only the proof of the amount of the agreed compensation, but that her services as a practical nurse was needed for twenty-four hours, or double duty, for the entire period of time so specified by her.
The undisputed testimony of all of the witnesses for both the appellant and the appellee was that after the stroke in March 1935, he was able to be up and around after two weeks until about two weeks before his death when he suffered another stroke of paralysis, therefore, the contention of appellant that her services were required on double duty for this entire time falls far short of actual proof.
Bell v. Oates, 97 Miss. 790, 53 So. 491; First Nat. Bank v. Owen, 171 So. 4.
Sufficiency of appellee's evidence to establish that the services rendered and for which compensation is claimed, grew out of illicit relations between decedent and claimant, and is therefore void as being against public policy.
6 R.C.L. 718, sec. 125; Brien v. Williamson, 7 How. 14; Wooten v. Miller, 7 Sm. M. 380; Odineal v. Barry, 24 Miss. 9; Hoover v. Pierce, 26 Miss. 627; Deans v. McClendon, 30 Miss. 343; Bank v. Stegall, 41 Miss. 142; Barker v. Justice, 41 Miss. 240.
Argued orally by L.C. Gwin, for appellant, and by Clay B. Tucker, for appellee.
The appellant, Mary L. Haralson, filed and probated a claim for services as a practical nurse to T.G. Brown in his last illness for thirty weeks and four days, at $20 per week.
The appellee filed a contest against said claim challenging the validity thereof on the ground that it was illegal on account of the illicit relations between the deceased and the appellant, and because no demand had been made upon the family during T.G. Brown's illness by the appellant, and further, that she exercised an undue influence over him during his last illness, he having suffered a stroke of paralysis.
The chancellor disallowed the claim of the appellant, and from this decree the appellant prosecutes this appeal.
There is no evidence as to what compensation T.G. Brown was to pay his servant, Mary L. Haralson, prior to this stroke of paralysis, but there is testimony to the effect that after the stroke of paralysis her services were worth $2 per day for single duty and $3 for double duty.
There were witnesses who testified that T.G. Brown, during his illness, told them that he had agreed to pay the appellant $20 per week, and another witness testified that he told him that her services were worth $20 per week but he was not able to pay her.
There is also evidence of undue familiarity between the deceased and the appellant, from which it might be inferred that she was his concubine, but there is no proof as to any compensation being paid to her in consideration of such relation.
There is no evidence to show that such relation had anything to do with the making of the contract testified to by the witnesses as being admitted to them by the deceased.
It is highly improbable that after the stroke of paralysis there were any such relations between the parties.
There is testimony showing that the wife and daughter of the deceased went to his home after the stroke of paralysis for the purpose of nursing him, but he would not permit them to do so, and they returned to the wife's home in an adjoining county, T.G. Brown and his wife being separated at the time.
It is also in the evidence that the deceased, for the period claimed, was unable to care for himself much of the time, and that the appellant had to attend to him as though he was an infant, with all of the implications. He could not feed nor dress himself, and had no control over his bodily functions. During all of this period the appellant, Mary L. Haralson, cooked, washed for him, and generally administered to him nursing him faithfully, doing all that his condition required.
It seems to us that the proof is clear that there was a contract by which T.G. Brown was to pay the appellant $20 a week from the beginning of his stroke until his death, covering thirty weeks and four days. We think the evidence clearly establishes her claim in accordance with the announcements of this court in the cases of First National Bank v. Owen, 171 So. 4, decided December 7, 1936, and Tarver v. Lindsey, 161 Miss. 379, 137 So. 93, and the authorities there cited.
We think, therefore, that the chancellor erred in refusing to allow the claim, and his decree will be reversed and judgment rendered here for the appellant for the amount claimed.
Reversed and rendered.