28.00 [1980 Revision] Verdict Directing-Services Furnished Decedent-General Comment

Instruction No 1 28.00 [1980 Revision] Verdict Directing--Services Furnished Decedent-- General Comment Actions to recover for services to decedents can be divided into two kinds. In one, the plaintiff is not in a family relationship with the decedent and is hereinafter called a stranger. (MAI 28.03 and 28.04). In the other, the plaintiff is in a family relationship with the decedent. (MAI 28.01 and 28.02). Actions by Stranger "Absent a family relationship, where one performs valuable services for another, the benefit of which has been received and enjoyed by him, the law presumes an intention on the part of the former to charge and the latter to pay the reasonable value thereof...." Smith v. Estate of Sypret, 421 S.W.2d 9, 14 (Mo.1967). When a stranger furnishes services to a decedent which decedent accepts, the rule of quantum meruit allows recovery and is barred if the defendant establishes an intent by the stranger to make a gift. This is an affirmative defense. Lauf v. Wiegersen, 17 S.W.2d 369, 371 (Mo.App.1929). Defense Instructions Where Plaintiff Is a Stranger When claim is made by a stranger, the defendant may offer the affirmative defense of payment using MAI 32.14 or the affirmative defense that services were furnished gratuitously, using MAI 32.15. Actions by Persons in a Family Relationship When services are performed by one who is in a family relationship with decedent, "recovery must be upon an express contract, or from evidence from which it can be reasonably concluded that there was a distinct understanding and agreement, understood and acted upon between the parties, a contract established on inference rather than implication." Smith v. Davis' Estate, 206 Mo.App. 446, 459, 230 S.W. 670, 673 (1921). See also Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 665, 210 S.W.2d 49, 51 (banc 1948); Lipperd v. Lipperd's Estate, 181 Mo.App. 106, 163 S.W. 934 (1914). In Steva v. Steva, 332 S.W.2d 924, 926 (Mo.1960), the term "family," within the rule under discussion, was defined as "a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other." For further definition see Smith v. Estate of Sypret, 421 S.W.2d 9, 14 (Mo.1967). If plaintiff admits he was in a "family relationship" with decedent, or if this relationship is in issue, plaintiff may submit on the basis of express contract, using MAI 28.01, or on a contract implied by the conduct of the parties, using MAI 28.02. Defense Instructions Where Plaintiff Is In a Family Relationship As recovery by one admittedly in a family relationship can only be had on the basis of an express or implied contract, defendants would normally converse one or more elements of the plaintiff's case in the same manner as other contract actions are conversed. Or, defendant may submit the affirmative defense of payment, MAI 32.14. Defense Instructions See affirmative defense instructions, MAI 32.14 to 32.16. Damages MAI 4.07 should be used. (Mo.App.1966). See Ridinger v. Harbert, 409 S.W.2d 764, 768