Einolf v. Thomson

JAGGARD, J. In this case plaintiff sued for personal services as a household ser-vant, claimed to have been rendered by her to defendant. The an [231] swer was to the effect that, during all the times specified in the complaint, plaintiff lived in defendant’s home, and occupied the position and relation to him of a daughter, and that all services performed by her for him were rendered gratuitously. Trial by jury resulted in a verdict for the plaintiff. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, defendant appeals. 1. The testimony shows conclusively that the plaintiff, a niece by birth, although never legally adopted, occupied the position of, and was treated by the defendant as, a daughter. “The general rule deducible from the authorities is that where a child after arriving at •majority continues to reside as a member of the family with a parent, ■or with one who stands in the relation of a parent, * * * the presumption is that no payment is expected for services rendered or support furnished by the one to the other. This presumption is not, however, conclusive, and may be overcome by proof either of an express agreement to pay, or of such facts and circumstances as show satisfactorily that both parties at the time expected payment to be made.” 21 Am. & Eng. Enc. (2d Ed.) 1061. And see Donahue v. Donahue, 53 Minn. 460, 461, 55 N. W. 602; Wetherill v. Canney, 62 Minn. 341, 346, 64 N. W. 818. ■ The testimony, however, demonstrates that in the spring of 1901 facts occurred which established the parties upon a commercial basis. Tt was conceded by counsel for defendant that an arrangement was then ■entered into whereby the defendant contracted to make a will in favor of the plaintiff, and that if he had died, leaving her nothing, an •action for wages could have'been brought. He insists, however, that this action was prematurely brought. Patterson v. Patterson, 13 Johns. 379. An examination of the record shows that there was an arrangement made that the plaintiff should receive some compensation; that in the spring of 1901 the defendant had a will drawn, whereby the ■plaintiff and the two other children were given equal shares in defendant’s property, and showed this to the plaintiff; that, after the death of one of the children, defendant destroyed this will, and had ■another drawn, giving the plaintiff equal shares with the living child, and showed it to the plaintiff; that this will was afterwards destroyed. Taken as a whole, the evidence reasonably tends to prove the [232] agreement to have been that the plaintiff was to receive compensation; that she was not bound to await defendant’s death, and then sue for wages only in case she was not provided for by will. On this state of facts, the action was not prematurely brought. 2. The defendant offered to prove that after he destroyed the last will he still intended to make provision for the plaintiff by his last testament, and to leave her a portion of his property, and to treat her in all respects as his daughter. This evidence, in the view here taken, and for other obvious reasons, was properly excluded. 3. The jury awarded the plaintiff damages at the rate of five dollars a week for all the time she remained at defendant’s place after she became of age — about five and a half years. The plaintiff’s own testimony placed the value of her services at four dollars a week. The defendant insists that the verdict, $1,397.88, was $275 larger than the plaintiff’s estimate, or than she was entitled to. The amount was not in excess of the demand in the complaint, or of other' testimony received. One witness testified that the services were worth one dollar a day; another, that they were worth five dollars a week. The matter was fairly within the discretion of the jury. It cannot be held, as a matter of law, that the verdict was so excessive as to.require that it be set aside. 4. The final question arises upon the following record: Q. Now, I want you to tell how Mr. Thomson came to get possession of the child? A. When she was born, my wife was sick; and, I think, the night before she died, Mrs. Thomson and I and her was in the house, and she knew she was dying, and she asked me if I would give her the girl — the baby — and I said, if she was willing, I was; and she turned to Mrs. Thomson and said: “You can have her.” And Mrs. Thomson said: “Some time we will get up adoption papers.” (Defendant moves that the answer be stricken out as incompetent and immaterial. Motion denied). This question was proper. The answer was proper, except a.s to the last part of its last sentence. If the defendant’s motion had been directed to that part of the last sentence of the answer, instead of to the whole of it, it should have been stricken out. As it is, the record presents no error. September 7, 1905. There are some other assignments of error, in which we have failed to 'find anything of sufficient force to justify specific consideration or a reversal. Order appealed from is affirmed. After reargument the following opinion was filed on