132 Wis. 38 | Wis. | 1907
The following opinion was filed March 19, 1907:
As appears by the statement of facts, the circuit court allowed an amendment to the original claim as filed in the county court which added two entirely new items, aggregating $185.06, and submitted them to the jury. This was clearly erroneous. This court has held that matters not presented in the county court cannot be brought into the controversy upon appeal, because the theory of the statute is that only claims which haye been passed upon by the probate court are to be considered upon the appeal. Sloan v. Duffy, 117 Wis. 480, 94 N. W. 342. The circuit court has undoubtedly power to allow amendments in its discretion to such
The appellant moved for a nonsuit and also for a directed verdict on the ground that no express contract to pay for the alleged services had been shown, and as the rulings on these motions present the same general question they will be considered together. In such consideration it becomes necessary to make some further statement of the evidence.
The evidence showing that the claimant was received into the family of the deceased and was called a son and treated in all respects as a son from his fifth to his twentieth year as well as during a number of months after his return from the army in his twenty-fifth year has already been quite fully stated. At this latter time the deceased sold his farm and the claimant started out to make his own way. No change appears to have taken place in the feelings of the parties toward each other at this time. The deceased still continued to speak of the claimant as his son and his boy, and the claimant apparently lost none of his filial regard, and his children seem to have considered and treated the deceased as their grandfather. In April, 1893, the deceased requested the claimant and his family to come and live with him in his house in Wauwatosa, and the claimant did so, and from that time until September, 1895, they all lived together as one family. The testimony seems to show that during this time the claimant furnished the food and such care as the deceased needed, while the deceased furnished the house without
The general questions involved have been frequently considered by this court and the following propositions have been very definitely settled: Where a child lives in -his parent’s household, even after his majority-, eating at his parent’s table and rendering services such as are ordinarily rendered by the members of a household to each other, the presumption is that the board and services mutually rendered are intended to be gratuitous, and no contract to pay therefor on either side will be implied; but there must be an express contract shown either by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive. Pellage v. Pellage, 32 Wis. 136. The same rule applies between, brother and sister (Hall v. Finch, 29 Wis. 278), stepfather and stepson (Wells v. Perkins, 43 Wis. 160; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252), foster parent and child (Tyler
The facts as to the relations of the parties in the present case were all undisputed. The deceased always regarded the claimant as a son, and treated him as such both during the latter’s childhood and during his adult years, and the claimant responded by treating the deceased as a father. In the claimant’s youth he was dependent upon the deceased, and in the old age of the father- he was in turn dependent upon the claimant. We think that upon the undisputed facts the presumption arose that the claimant’s services for his father from 1893 until October,T896, were gratuitous, and that the jury should have been so instructed. This conclusion does not necessarily mean, however, that a nonsuit should have been ordered or a verdict for the defendant directed. It simply means that the jury should have been told that no recovery could be had unless an express promise by the deceased to pay for the services had been first proven, either by direct and positive evidence, or by evidence of circumstances which in their nature are equivalent to direct and positive proof. The principle is that, if such express promise be proven, it removes the presumption that the services were gratuitously rendered; if the express promise be to pay money or will per
Another question becomes important at this point, namely,
Exception was tahen by the defense to that part of the charge of the trial court on ‘the subject of the burden of proof- and the preponderance of evidence. As this alleged error was not assigned in appellant’s brief we do not consider it, but we do not deem it improper to call attention -to the fact that it seems to be practically identical in language and meaning with the instruction disapproved by this court in the case of Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077. A number of exceptions to the admission of evidence were argued, but we have found no error in them, and do not regard them as of importance enough to discuss in detail.
By the Court. — Judgment reversed, and action remanded for a new trial.
A motion for a rehearing was denied May 21, 1907.