112 Mo. App. 165 | Mo. Ct. App. | 1905
This is an action to recover compensation for services rendered by the respondent as a servant in the family of the appellant. The services consisted of washing, ironing, cooking, housecleaning, milking, churning and such other duties as are incident to domestic work around the home of a farmer. The respondent went to dwell in the appellant’s family in
The defense pleaded to the first count of the petition is that at the request of respondent’s mother appellant took respondent, when fifteen years old, into his house to live as a member of his family and she remained there pursuant to that arrangement until 1890, receiving board, clothing and education and treatment as a member of the family. The defense to the second paragraph was a general denial. In addition to' those defenses the Statute of Limitations was pleaded against both causes of action.
The testimony for the respondent conduces to show that when fifteen years old she entered appellant’s household and from that time, through five years or more, did domestic work of the character mentioned. She received her board and' clothing from the appellant) but positively denied that, to her knowledge, her mother placed her in his home to be raised and get only board and clothing for the work she would do. Her testimony was that prior to 1887, the year when she asserts an express contract was made about her compensation, no certain amount of wages for her labor had been agreed on, but that she never understood, she was staying with the family as one of it and for no wages. She swore she spoke to the appellant in 1887 on the subject, telling' him she could no longer continue under the ex
“The court instructs the jury that if they find from the greater ‘weight of the evidence in the cause that at the tim.e plaintiff became of age she was then, and thereafter continued for any length of time in the employ of defendant as his housekeeper, or house-servant, and discharged her duties in that behalf to the satisfaction of defendant, and if the jury do not find that there was an express contract, understanding or agreement between plaintiff and defendant after she became of age, as to what wages, compensation or remuneration should be paid or given plaintiff for such services,if any, after she became of age, then your verdict under the first count should be for the plaintiff and in such sum as the*169 jury may find from the evidence her said work and services, if any, after she became of age, were reasonably worth; provided the jury farther find from the evidence in the case, that the credits given by plaintiff, on her account, were given with the knowledge and consent of defendant at the time they were severally given, as referred to in plaintiff’s instruction No. 1.”
The jury returned a verdict for the respondent in the sum of $150.65 on the first paragraph of the petition. The quoted instruction authorized no judgment quantum meruit for the respondent’s services while she was a minor; but made her right to recover for those services depend' on satisfying the jury that the appellant expressly agreed to pay her a certain sum when she married. Probably the reason for this ruling was that, in the opinion of the court, respondent’s mother was entitled to her earnings while a minor unless there was a positive arrangement by which respondent herself should be paid. In truth the evidence permits only two conclusions regarding respondent’s compensation for work done while a minor. One is that she was to get nothing except a home and maintenance and the other that,.by virtue of the alleged promise, she was to get $500. The jury having found there was no such promise, could not return a verdict in respondent’s favor for services rendered while under age. The jury awarded compensation for the reasonable value of her services during the two years after she was of full age, and the question for decision on this appeal is concerning the soundness of the instruction of the court under which the reward whs made. The court instructed that if the jury found' respondent remained in the appellant’s employ as housekeeper and servant and discharged her duties to his satisfaction after she was of full age, and there was no express contract, understanding or agreement between them after she became of age, regarding remuneration for services rendered after that time, the verdict should be in her favor for such sum as those ser
If we apply the foregoing rules to the evidence in the present case, it is plain the instruction we have quoted, unqualified as it was by any other charge, was erroneous. It left entirely to one side the testimony conducing to prove the respondent was given a home in appellant’s family while a minor, with the understanding that she was to be -supported and, treated as one of the family but receive no wages. It is true there was evidence to show that even if the appellant never promised to pay her $500 when she married, she was,
“When, without express contract, an infant is indefinitely taken into a family not akin to it, the surrounding circumstances must give construction to .the act, and determine whether the infant is so taken as a visitor, or as a servant for wages to be earned by it, or as a boarder or pupil for nurture or tuition for compensation to the head of the family, or as a child adopted by the family in the relation of a child by blood, or in some other peculiar relation. In the absence of proof of surrounding circumstances from which a contract can be implied, it is not the province of the law to impose one upon the parties.”
In Bennett v. Stephens, 8 Oregon 444, an instruction was approved which declared the proposition that if a poor person is taken out of charity, provided with food, lodging, clothes and necessities and set to work, no contract for hiring is implied, however long the party may continue. That was an action for wages by a girl who entered the defendant’s home when seventeen years old.
The question of whether the family relation existed between these parties is for the jury to decide on all the facts before them and it devolves on the appellant to establish the relation by the weight of evidence. If it is found to have existed, the burden will fall on the respondent to establish that after she became of age there was an agreement or understanding that she should henceforth be remunerated; otherwise the burden is on the appellant to prove her work was gratuitous. Even if there was a family relationship, she is entitled to compensation for work done after she reached her majority, provided the facts in evidence warrant the inference that compensation was thereafter intended and expected. Too much is said about the presumptions of the law in charging juries in this class of cases. The advice the jury needs is’in regard to what facts they
One suggestion ought to be made. The respondent admits appellant furnished her with clothes and food after she reached her majority. Board is an ordinary incident of domestic service when a servant is paid wages, but clothes are not. If respondent is to recover wages for what she did when of full age, the value of the clothing she was supplied with by the appellant ought to be taken out in assessing her damages.
The judgment is reversed and the cause remanded with a direction to retry the issues on the first paragraph of the petition. After verdict thereon the judgment will follow the findings on the two paragraphs.