Shane ex rel. Armstrong v. Smith
37 Kan. 55
Kan.
1887
Check Treatment

Opinion by

Holt, C.:

The evidence shows that plaintiff came from Missouri at the request of defendant, and performed the ordinary household work in defendant’s family, and also herded his cattle at all seasons of the year, under the promise of being sent to school, and taught to play the organ. Defendant neither sent her to school nor taught her to play the organ, but failed in every way to fulfill his contract with her. Upon the failure of the defendant to pay in the particular way agreed upon, then the plaintiff is entitled to compensation in money upon refusal to pay in the way specified. (Stone v. Stone, 43 Vt. 180.) There was no time agreed upon that she should *58work for defendant. When one is hired for an indefinite period, the party employed can leave at any time without giving any reason therefor. (Kirk v. Hartman & Co., 63 Pa. St. 97.)

The defendant in error urges that because of the relation existing between plaintiff and defendant, and the fact that plaintiff was one of the defendant’s family, she ought not to recover in this action. We believe that where a near relative is taken into the family and treated as a member thereof, there is a strong presumption created that no payment or compensation was intended to be made for services by one to the other, beyond that received during the time they were rendered; and it will take clear and satisfactory proof to remove the presumption that their relation was one of near relatives in the same family, rather than that of master and servant. (Ayres v. Hull, 5 Kas. 419; Greenwell v. Greenwell, 28 id. 413, 675; Hall v. Finch, 29 Wis. 278; Williams v. Hutchinson, 3 N. Y. 319.) The nearer the relation, the stronger the presumption that they regard themselves and are to be treated as members of the same family, and not as master and servant. On the other hand, the more distant the relation the weaker the presumption that they are to be treated as members of the same family. In the case of Ayres v. Hull, cited and relied upon by defendant, the relation of brother and sister existed; very much stronger than that of uncle and niece by marriage, as in this case. In recognizing the ordinary rule, the court says in that case:

“So many considerations, other than those of a mere pecuniary character, enter into the minds of persons closely related in making up the family, that it would be both violent and dangerous to infer a promise from the kindly and sociable acts growing out of such relations.”

But the court also says in the same opinion:

“ There is not one word of testimony tending in the slightest degree to show either an express promise to pay, or a specific contract, or that there was any understanding that the decedent was to pay for the services rendered, or that the relation of debtor and creditor was growing up between the parties.”

In this case there was a distinct promise to pay, not in money, *59but payment that would have been of as much value, at least to a girl just growing into young womanhood. Some of the evidence tends to show that she was required to do and did do more than the ordinary labor of a well-ordered household. The paper which defendant filed with the justice of the peace before whom this cause was first tried, whether an account kept against plaintiff, or a simple memorandum, as he claimed it to be, plainly shows from the items therein contained that at one time he regarded her as his hired servant. He charged her for clothing, medicines, doctors’ bills, lost time, and furniture she carelessly destroyed. There was testimony showing the value of plaintiff’s services sufficient to authorize a judgment in her favor. The plaintiff was only thirteen years old when she began to work for defendant; and it may be when the evidence of defendant is offered in another trial of the case, the cause of action established by the evidence of plaintiff may be fully met and overborne; but under the testimony brought here, the court erred in rendering judgment for the defendant.

It is recommended that the judgment of the court below be reversed.

By the Court: It is so ordered.

All the Justices concurring.