202 Pa. 120 | Pa. | 1902
Opinion by
There are two questions in this case: (1) Was the plaintiff a servant within the ruling that her services were presumed to have been paid periodically, and (2) if so, was the presumption rebutted by the facts disclosed by the testimony in the case ?
1. Samuel Beatty, the original defendant in this action, lived in a rural part of Montgomery county, and kept a hotel there. The plaintiff entered his service on September 19,1885, and left it on September 1, 1892. She claims that he contracted to pay her compensation at the rate of $5.00 a week for an indefinite term of service. She instituted this action during Beatty’s life in the common pleas of Montgomery county, July 17, 1893, to recover $1,805, less $100 paid her on account, with interest from September 1, 1892. He filed an affidavit of defense and the case was put at issue October 11, 1893, on the pleas of non assumpsit and payment. Samuel Beatty died May 12, 1899, and in May, 1900, his death and the marriage of the plaintiff were suggested and the record was amended-accordingly. On March 11, 1901, the plea of non assumpsit infra sex annos was added and the case tried. At the conclusion of the plaintiff’s testimony, the court granted a compulsory nonsuit. The learned trial judge subsequently refused to take off the nonsuit for the reason that the plaintiff’s “case falls within that class in which it has been so often decided that servants’ wages are presumed to bo paid weekly or monthly; and there was no evidence to take it out of the general rules.”
The evidence on the trial was sufficient to establish a contract of hiring at the rate of $5.00 per week and to sustain the claim of the plaintiff that she was in the service of Samuel Beatty from 1885 until 1892. But we do not agree with the plaintiff, that her services were of such a character that they were taken out of the rule that they were presumed to be paid weekly as the decedent agreed to pay them. She alleges in her statement
The testimony shows that the plaintiff performed the duties of a domestic or menial servant. Occasionally she was assisted by other servants but this did not change the character of the services performed by her. Such assistance merely lightened her labors but did not affect or change the nature of her services. It was a country house whose occupants, except on rare occasions, consisted of the plaintiff and the decedent. So few were the people who came to the house and her duties were so light that the plaintiff was very lonesome and didn’t think she could remain with the decedent. It is apparent that there was no necessity for more than one servant at the house, and that the plaintiff, as the testimony shows, did the ordinary work of a house servant. It is the character of the services rendered and not the term applied to the person performing them that determines whether or not she is a servant within the rule that a servant’s wages are presumed to be paid periodically. It is immaterial that the employee is called a
The English rule as to the presumption of payment of servants’ wages, determined in Sellen v. Norman, 4 C. & P. 80, and Gough v. Findon, 7 Exch. Rep. 49, has been followed in this state. In the last cited case Baron Parke states the rule as follows: “ Where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made by the servant for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.” The presumption of payment rests upon the known fact, as said by Paxson, J., in McConnell’s Appeal, 97 Pa. 31, that in England, servants’ wages, as a general rule, are paid at stated periods, and it is entirely immaterial whether such periods are weekly, monthly, or yearly, and upon the further fact that a servant rarely leaves the service of an employer and remains away for months or years, without a settlement of some sort with his or her employer or at least a demand for payment. The same facts are recognized as existing in this country and this court has uniformly enforced the rule: Houck v. Houck, 99 Pa. 552; Carpenter v. Hays, 153 Pa. 432; Coulston’s Estate, 161 Pa. 151.
2. To sustain a claim for services under circumstances similar to those in the case at bar, our decisions require the servant to show affirmatively that her wages have not been paid, thus rebutting the presumption of payment. In Carpenter v. Hays, supra, our Brother Mitchell, speaking for the court,
It is, however, contended by the learned counsel for the appellant that the presumption that the plaintiff’s wages were paid was overcome by the decedent’s affidavit of defense, in which it was averred that he did not contract with the plaintiff to become his housekeeper, but failed to deny the allegation in the statement of payment of small sums on account of her services. But this position is not well taken. It overlooks the object of an affidavit of defense, the sole purpose of which is, in the absence of a rule of court on the subject, to meet the
The services of the plaintiff were those of a domestic, and under the conceded facts of the case they are presumed to have been paid weekly in accordance with the contract. This presumption not having been rebutted, the learned trial judge committed no error in directing a verdict for the defendant.
The assignments are overruled and the judgment is affirmed.