71 Wis. 655 | Wis. | 1888
The plaintiff’s claim is for work and labor from October 1, 1879, to December 1,1885, for $100 for the first year, and $200 for the subsequent years. The plaintiff, at the commencement of such work and labor for the defendant, was only sixteen years of age. Her mother had died, and her father had neglected to support or care for her, and she was dépendent upon her own labor for support, when she commenced to work out in the city of Chicago at her own instance and without interference of her father; and she so worked about four years, when she came to her uncle’s at Fall River in this state, where she had a home, in
The defendant was a single man, about fifty years of age, and owned and conducted a farm of 260 acres, and kept house thereon with a housekeeper. The plaintiff testified, substantially, that during the first summer she worked part of the time on the farm, and part of the time in the house; and that after she and the defendant settled and she received her ten shillings per week, the defendant said to her that he would like to have her stay with him right along, and that he would pay her well when she got through, and that she stayed and worked under that contract six years. The first winter she worked in the house most of the time. In the spring she plowed and dragged until the crops were in, and then she 'worked in the corn until harvest, and then worked in harvest on the harvester, and then did fall plowing and husked corn. In 1888, she plowed about 100 acres, and in 1884 about 120 acres, and in 1885 about 100 acres. She worked three horses all the time. She generally got to her work, in the spring, summer, and fall, at 4 o’clock in the morning, and her breakfast was sent to her in the field.
. In view of the hard, rough, and constant work out of
But the contract, as stated by the plaintiff, was sufficiently proved by her own testimony, so corroborated by the testimony of her witnesses. The defendant testified that the only contract made was the one set up in his answer, and there was some evidence that the plaintiff had made statements to the same effect. The jury had the right to believe the plaintiff. The father of the plaintiff left her to hire herself out, receive her own wages-, and generally to take care of herself, at a very feeble age and when she was
The first two exceptions embrace really but one legal proposition, and that is whether the relations between the parties were such that the plaintiff must prove an express' contract to recover for her services. If the principle can ever be extended to embrace strangers, or those not of kindred relationship, as members of the same family, which may be doubtful, most certainly there should be such circumstances of family relationship as would imply that the plaintiff’s services should be gratuitous. But in this case the plaintiff was an entire stranger to the defendant, and was not a member of his family until she was employed by him to work for a compensation; and when that time of employment was at an end she continued to work for him-in the same general way but more laboriously. And if she did so without any express agreement, the law would imply from their former relations a promise on his part to pay her therefor what her services were reasonably worth. In other words, she was not a member of his family except as-a hireling; and if she continued in his family the law would imply that she was still a hireling. There was nothing to create any other relation between them except that of employer and employee. Her being a minor cuts no figure in' the case; for the defendant employed her first as if she had
It follows, therefore, that if the defendant wishes to take this case out of the general rule he must prove an express agreement to that effect, or that the plaintiff should receive only, as compensation, her board, clothing, and medical ■care, according to his answer. But, again, there is no such question in this case. The pleadings must determine the attitude of the parties to each other. The plaintiff seeks to recover by proof of an express contract of employment, and the defendant seeks to defeat her action by proof of an express contract, not that he did not hire or employ her to work for him, but to work for him for the compensation only of a home and of board, clothing, and care in sickness. The jury found the contract as alleged by the plaintiff, and that no such contract as alleged by the defendant was ever made; and that was the real issue between the parties. The question of gratuitous service in consequence of family relationship is not in the case.
The third exception, as stated in the brief of the defendant’s counsel, is modified by the full instructions of the court as to the time for which the plaintiff might recover. It is guarded by all proper conditions, so that the jury could find for the whole time’ or any part of it, and make proper deductions. We cannot see any objection to that part of the charge, or, indeed, to any part of it. The whole case was
By the Court.— The judgment of the circuit court is affirmed.