Dodson v. . McAdams

Merrimon, J. It seems to be settled law — certainly in this State — that if a grandfather receives his grandchild or grandchildren into his family, and treats them as members thereof — as his own children — he and they are in loco paren-tis et liberorum, and hence, if the grandchild in such case, shall do labor for the grandfather, as a son or daughter does ordinarily as a member of the family of his or her father, in that case, in the absence of any agreement to the contrary, no presumption of a promise on the part of the grandfather to pay the grandchild for his labor arises; the presumption is to the contrary. The grandchild, as to his labor or services so rendered in such case, is on the same footing as a *155 son. or daughter. And this is so, after the grandchild attains Ms majority, if the same family relation continues. This rule is founded, in large measure, upon the supposition that the father clothes, feeds, educates and supports the child, and that the latter labors and does appropriate service for the father and his family in return for such fatherly care, and domestic comfort and advantage. The family relation and the nature of the service, rebut the ordinary' presumption that arises when labor is done for a party at his request, express or implied, of a promise on his part to pay for it. Applying this rule, this Court held in Hussey v. Rountree, Busbee 111; that though a step-father is not bound to support his step-children, nor they to render him any service, yet if he support them, or they labor for him, in the absence of an express agreement, they will be deemed to have dealt with each other as parent and child and not as strangers. And, in the subsequent case of Hudson v. Lutz, 5 Jones, 217; Chief Justice PeaksoN said, citing the above cited case with strong approval, that “ the same principle applies to a grandfather and child, when the one assumes to act in loco parentis. In our case, (that then under consideration,) this relation existed to all intents and purposes. The circumstance that the plaintiff was illegitimate, has no bearing on the application of the principle ; the ‘ old man/ in the fullness of his affection, forgave the transgression of his daughter, and allowed her and her child to live with him as members of his family up to his death. The relation of the parties rebuts the presumption of 'a special contract, and puts the idea that he was to be paid for furnishing a home, or they were to have ‘ a price ’ for work and labor done, out of the question. In the language of RueeiN, Judge, such claims ought to be frowned on by the Courts and juries. To sustain them, tends to change the character of our people, cool domestic regard, and in the place of confidence, sow jealousies in families.” *156 In such, cases, the ordinary rules applicable to parent and child will be applied, and hence it is not presumed that compensation will be paid on the part of the grandchild for board and clothing, nor on the part of the grandfather for labor and services. Hussey v. Rountree, supra; Shouler on Dom. Rel., §273. But, the presumption against a promise to pay for such labor may be overthrown by an agreement to pay for the same, appearing in terms or by any proper proof to establish the same, as pointed out in Williams v. Barnes, 3 Dev., 349; Young v. Herman, Adm., decided at the present Term; Shouler on Domestic Rel., §§269, 274. Now, it appears in evidence in the present case, that the feme covert plaintiff was the granddaughter of the testator of the defendant; that she was taken by and lived with him from the time she was two or three years old until she was married, at the age of twenty-three years; that after she was fourteen years old, she did much of the domestic work in and about her grandfather’s home, and occasionally worked in his small crop ; that she lived with him as a member of his family, and was always treated just as one of his own children; he paid for her education — such as she received— and when she was married, he provided for her just as if she had been his own child; he had said at some time, in the presence of two or three witnesses, that if she remained with him, he expected to give he.r a part, just as he would his own children; one testified, that he said he intended hig house for her; another, that he said she was a good girl, and she should be paid for her work, &c. She occasionally did some work for herself. Accepting the evidence as true, there was none to prove a special agreement as alleged, between the testator and the feme plaintiff, that he would make provision in his will for her as compensation for her services, and the Court properly .so instructed the jury. The testimony of the feme plaintiff, *157 indeed of all the witnesses- — -the whole of it — went to prove that she lived with her grandfather as a member of his-family, and she was uniformly so treated, she so worked, and there was no evidence to prove an express or implied agreement between herself and the testator, that she should receive from him compensation for her services, other than such as she received as a member of the family. His occasional casual declarations that he intended his home for her —that she was a good girl, and should be paid for her services, were not of themselves alone evidence to go to the jury to prove such agreement, although they, with other competent facts, might make such evidence. Young v. Herman, Adm., supra; Shouler on Dom. Rel., §269. By such agreement is meant the mutual assent and understanding of the testator and the feme plaintiff, appearing by express terms, or from such facts and circumstances as show it by reasonable implication. The assent and understanding of one of the parties, without that of the other, is not sufficient; there can be no agreement without such mutual assent and understanding, and this must expressly appear, or it must appear by just implication from the evidence. The appellant in substance, requested the Court to instruct the jury, that if the feme plaintiff was simply a member of the testator’s family and so treated, as the evidence tended to prove, then she could not recover. This the Court declined to do. In this there was error. The appellant, in view of the evidence, was entitled to that instruction, or the substance of it, which was not given. On the contrary, the Court instructed the jury, “that the relation of grandfather and grandchild did not raise the presumption that the services of the plaintiff were gratuitous.” It is true, such services were not presumed to be “gratuitous,” but they were in contemplation of law, nothing to the contrary appearing, rendered in consideration of the care, protection and advantage the feme plaintiff had and derived from her grand *158 father, and the relation did raise the presumption that the plaintiff should receive only that compensation. There is error. The appellant is entitled to have a new trial. To that end let this opinion be certified to the Superior Court according to law. It is so ordered. Error. Reversed.