I concur in the reversal of this, judgment because upon the proof the verdict is too large, but I do not think this court should say, in.. *647effect, that ¡the- plaintiff has no cause of action, as is the purport of the opinion of Mr. Justice Laughlin.
Whether or not the deceased expected to pay and the plaintiff expected to be paid for her services in caring for the deceased in his helpless condition, is a question, for the jury to determine. While the plaintiff occupied in a measure an intimate relation to the deceased, she was not a member of his household nor any .blood relation, and the presumption which would apply if she had lived with him, or was a near relative, that the services which she rendered- were gratuitous and sprung from love and affection, does not apply to her. She left her own household to perform the services. They were in the line of work that she was accustomed to do. Under these circumstances- a presumption rather arises that there was an intention to pay and tp.be paid. Added to this presumption are the repeated statements of the deceased that she would be reimbursed for her trouble, or taken care of, or well paid.
It seems to me that the plaintiff can and has made a case entitling her to some compensation.
The receipt which she signed is capable of explanation. It is true that there was no claim for services in the bill winch she presented. Her explanation that the administrator with the will annexed desired to reimburse her for the moneys which she had paid out, and that she made a bill for that purpose, and did not observe that the receipt covered anything further, authorized the jury to say that there was ,no intention on her part to present a claim for anything except the money which she had actually paid out for the-deceased, and that she was not foreclosed -from thereafter presenting a bill' for her individual services.
If a new trial should be granted, I do not think the plaintiff should be - embarrassed by the broad statements of the 'main opinion.
O’Brien, P. J., and Patterson, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.