Dodson v. . McAdamsDodson v. . McAdams
It seems to be settled law — certainly in this State — that if a grandfather receives his grandchild or grandchildren into his family, and treats them as members thеreof — as his own children — he and they are in loco paren-tis et liberorum, and hence, if the grandchild in such case, shall do labor for the grandfather, as a son or dаughter does ordinarily as a member of the family of his or her father, in that case, in the absence of any agreement to the cоntrary, no presumption of a promise on the part of the grandfather to pay the grandchild for his labor arises; the presumption is to the contrary. The grandchild, as to his labor or services so rendered in such case, is on the same footing as a *155 son. or daughtеr. And this is so, after the grandchild attains Ms majority, if the same family relation continues. This rule is founded, in large measure, upon the supposition that the father clothes, feeds, educates and supports the child, and that the latter labors and does appropriate service for the father and his family in return for such fatherly care, and domestic comfort and advantage. The family relation and the nаture of the service, rebut the ordinary' presumption that arises when labor is done for a party at his request, express or implied, of a promise on his part to pay for it.
Applying this rule, this Court held in
Hussey
v.
Rountree,
Busbee 111; that though a step-father is not bound to support his step-children, nor they to render him any service, yet if he support them, or they labor for him, in the absence of an express agreement, they will be deemed to havе dealt with each other as parent and child and not as strangers. And, in the subsequent case of
Hudson
v.
Lutz,
*156 In such, cases, the ordinary rules applicable to parent and child will be aрplied, and hence it is not presumed that compensation will be paid on the part of the grandchild for board and clothing, nor оn the part of the grandfather for labor and services. Hussey v. Rountree, supra; Shouler on Dom. Rel., §273.
But, the presumption against a promise to pay for such labor may be оverthrown by an agreement to pay for the same, appearing in terms or by any proper proof to establish the same, as pointed out in
Williams
v.
Barnes,
Now, it appears in evidence in the present case, that the feme covert plaintiff was the granddaughter of the testator of the defеndant; that she was taken by and lived with him from the time she was two or three years old until she was married, at the age of twenty-three years; that аfter she was fourteen years old, she did much of the domestic work in and about her grandfather’s home, and occasionally worked in his small crop ; that she lived with him as a member of his family, and was always treated just as one of his own children; he paid for her education — such as she received— and when she was married, he provided for her just as if she had been his own child; he had said at some time, in the presеnce of two or three witnesses, that if she remained with him, he expected to give he.r a part, just as he would his own children; one testified, that he said he intended hig house for her; another, that he said she was a good girl, and she should be paid for her work, &c. She occasionally did some work for herself.
Accepting the еvidence as true, there was none to prove a special agreement as alleged, between the testator and thе feme plaintiff, that he would make provision in his will for her as compensation for her services, and the Court properly .so instructed the jury. The testimony of the feme plaintiff, *157 indeed of all the witnesses- — -the whole of it — went to prove that she lived with her grandfather as a member of his-family, and she was uniformly so treated, she so worked, and there was no evidence to prove an express or implied agreement betweеn herself and the testator, that she should receive from him compensation for her services, other than such as she received as a member of the family. His occasional casual declarations that he intended his home for her —that she was a good girl, аnd should be paid for her services, were not of themselves alone evidence to go to the jury to prove such agreement, although they, with other competent facts, might make such evidence. Young v. Herman, Adm., supra; Shouler on Dom. Rel., §269. By such agreement is meant the mutual assent аnd understanding of the testator and the feme plaintiff, appearing by express terms, or from such facts and circumstances as show it by reasonable implication. The assent and understanding of one of the parties, without that of the other, is not sufficient; there can be no аgreement without such mutual assent and understanding, and this must expressly appear, or it must appear by just implication from the evidence.
The appellant in substance, requested the Court to instruct the jury, that if the feme plaintiff was simply a member of the testator’s family and so treated, as the evidence tended to prove, then she could not recover. This the Court declined to do. In this there was error. The аppellant, in view of the evidence, was entitled to that instruction, or the substance of it, which was not given. On the contrary, the Court instructеd the jury, “that the relation of grandfather and grandchild did not raise the presumption that the services of the plaintiff were gratuitous.” It is true, such services were not presumed to be “gratuitous,” but they were in contemplation of law, nothing to the contrary appearing, rendered in consideration of the care, protection and advantage the feme plaintiff had and derived from her grand *158 father, and the relation did raise the presumрtion that the plaintiff should receive only that compensation.
There is error. The appellant is entitled to have a new trial. To that end let this opinion be certified to the Superior Court according to law. It is so ordered.
Error. Reversed.