102 Neb. 467 | Neb. | 1918
The plaintiff brought this action in the district court for Platte county to recover for alleged services rendered the defendant while in the defendant’s family as a member thereof. The verdict and judgment were in her favor, and the defendant has appealed.
It is earnestly contended on the one side that when an incompetent person, unable to support himself or herself, is taken into a family and cared for and furnished with board and clothes and the necessaries of life, the presumption is that any services rendered by such incompetent are fully paid for by the support furnished. On the other side it is as strenuously contended that, if such a person is competent to do all kinds of labor and able to earn much more than her care and support, and does in fact earn very much more than any
The trial court evidently considered these allegations of the intentions of the parties as allegations of an implied contract on their part, and repeated the allegations in full in the instructions to the jury. The court also, instead of a plain statement of the issue to be tried, repeated in the instructions other similiar allegations of the petition. Such practice has frequently been criticized by this court, and in Hutchinson v. Western Bridge & Construction Co., 97 Neb. 439, it is said: “It may be reversible error to include such statements in that part of the charge of the court defining the issues to be tried, and, if the reviewing court is satisfied that the jury has been misled by so doing, it will be its duty to grant a new trial.” This instruc
The plaintiff and her father were both taken into defendant’s family, and cared for until the father died. When they so went into defendant’s family, the plaintiff was about ten years of age. She was mentally incompetent, and it could not be considered probable that for some time at least she would be able to earn her own support. She, however, remained in the defendant’s family for more than 40 yearsthat is, for more than 30 years after she became of legal age. During
The court instructed the jury: “Under the issues formed by these pleadings the two questions for you to determine are: Whether the ■ services performed by the plaintiff were so performed as a member of the Brunken family, or whether they were- so performed as a hired servant, or under such circumstances as would lead to a fair inference of an implied, promise to pay for the same. Then, in the event that you shall find' that the services were performed as a hired servant or under such circumstances, as shown by the evidence, as leads to a fair inference of an implied promise on the part of John Brunken to pay for the same, you are called upon to determine what the value of these services were, over and above the value of the food, lodging and clothing- furnished to and provided for her, and. of the necessary care, if any, necessarily bestowed upon her.”
The defendant complains that this instruction submits the question whether there was an implied promise to pay for the services, and . says that is an issue not tendered by the petition. The reason alleged is that the plaintiff was only ten years old when taken into defendant’s family, and that fact rebuts any presumption of an implied promise .to pay for services. But, as we have already seen, the implied promise might arise when the plaintiff became of mature age and was rendering valuable services.
The instruction is also objected to on the ground that “it proceeds upon the theory that, if there was an
The instruction is also objected to because of the use of the - words ‘ ‘ a fair inference, ’ ’ but the jury in the court’s instructions were told that thé facts and circumstances from which they -find their verdict must be proved by the plaintiff by a preponderance of the evidence, and when the circumstances are so proved and found by the jury, it is for them to decide what is a fair inference therefrom. This instruction might have stated the issue more definitely and accurately, and, if a suitable instruction had been tendered in lieu ‘ thereof, it would no doubt .have been given. This same’ suggestion applies to the objection to other instructions in which the same expression occurs.
The defendant objects to the competency of the evidence as to the value of the plaintiff’s services, and says: “Not one of the witnesses offered upon this point'Showed himself competent to testify.” He names one of the witnesses in particular as having failed to show a proper foundation for her testimony. This witness, when asked what. such services were worth, answered: “I can’t say what it is worth to Mr. Brunken what she did, but I can say if she had worked for me what it is worth.” Other similiar evidence of this witness shows that she knew the value of such services.
The objection that the evidence as- a whole is not sufficient to support the verdict will not require a reversal. There is in the record substantial evidence of value, and the fact that there is some conflicting evidence would not justify taking the case from the jury. The trial seems to have been closely contested by energetic and competent attorneys, and while it is perhaps not free from difficulties, we have not found such errors in the record as we consider require a reversal.
The judgment of the district court is
Affirmed.