
    No. 398
    MARSHALL v. VOLLRATH, Ex’r.
    Ohio Appeals, 3rd Dist., Crawford Co.
    No. 1059.
    Decided March 27, 1925.
    264. COMPENSATION — Question of whether servant who was niece of decedent is entitled thereto, for services, is question for the jury.
    480. EVIDENCE—1. Where family relationship does not exist, niece must show proof that would warrant jury in finding an implied promise to pay for services.
    2. Need be proven by preponderence only.
   HUGHES, J.

This action was brought in the Crawford Common Pleas by Anna Marshall against Edward Vollrath, executor of Mary Marshall, deceased, to recover for personal services to the deceased for a period of two years. It seems that Anna Marshall was a niece of the decedent and it was alleged by Vollrath that she was a member of the same family and that no contract for services was entered into by the decedent.

Attorneys—William J. Schwenck for Marshall; Edward Vollrath and Clarence U. Ahl for Vollrath; all of Bueyrus..

At close of Marshall’s evidence the court directed a verdict in favor of Vollrath, upon the theory that she was a member of the family and did not prove by her evidence that she had an express contract with decedent to pay for such services. Error was prosecuted and Marshall contended that she was not a member of the family as alleged by Vollrath, while she.dived in the same house with decedent, she lived separately and apart, each maintaining their own living quarters. The Court of Appeals held:

1. Inasmuch as pleadings as well as evidence raised an issue, it became a question of fact for the jury to determine.

2. The rule that, where family relationships exist between one seeking compensation from decedent’s estate an express contract must be proven by clear and convincing evidence; does not exist where there is no such relationship.

3. One seeking compensation would be required to furnish proof of facts and circumstances that would warrant a jury in finding an implied promise to pay for services rendered, by a mere preponderence of the evidence. Judgment reversed.  