81 Mo. 425 (Mo. 1884), Plummer v. Trost

Citation:81 Mo. 425
Opinion Judge:PHILIPS, C.
Party Name:PLUMMER et al. v. TROST, Appellant.
Attorney:W. H. H. Thomas for appellant. Byrnes & McMullin for respondents.
Court:Supreme Court of Missouri
 
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Page 425

81 Mo. 425 (Mo. 1884)

PLUMMER et al.

v.

TROST, Appellant.

Supreme Court of Missouri.

April Term, 1884

Appeal from Jefferson Circuit Court. --HON. L. F. DINNING, Judge.

REVERSED.

W. H. H. Thomas for appellant.

The court erred in refusing to instruct the jury, at the close of plaintiffs' case, that plaintiffs could not recover on the pleadings and evidence. Plaintiffs' evidence showed that Mrs. Plummer, when she rendered the alleged service for appellant, was the wife of Chris. Kleisner, and she ea??ed no wages by her separate labor, as contemplated by section --, of an act in regard to married women, passed in 1875. Sess. Acts 1875, p. 61, § --. There should have been a contract with her, or husband, that she should perform the service, and enjoy the wages received as her own, or she should have performed the service under such circumstance?? as the court might infer she and husband both intended for her to receive and retain her wages for herself. Working in her husband's family, aiding him, and in conjunction with him, will not be sufficient to entitle her, under the above statute, to her separate earnings. Reynolds v. Robinson, 64 N.Y. 589; Bean v. Kiah, 4 Hun 171; Adams v. Curtis, 4 Lous. 164; Fier v. Railroad Co., 49 N.Y. 47; Kirkbeck v. Ackroyd, 11 Hun 365; Hazelboker v. Goodfellow, 64 Ill. 238; Lominer v. Kelly, 10 Kas. 298; McClusky v. Sav. Ins??, 103 Mass. 300; Kelly v. Drew, 12 Allen 107; Wells' Separate Property of Married Women, §§ 126, 127, 128, and cases cited; Hunt v. Spencer, 20 Kas. 131; Coughlin v. Ryan, 43 Mo. 99; Kidnell v. Kirkpatrick, 70 Mo. 214; Welch v. Welch, 6 Mo. 57; National B'k v. Sprague, 5 C. E. Green.

Byrnes & McMullin for respondents.

PHILIPS, C.

This action was begun in the name of Katie Kleisner against the defendant. She having married, pendente lite, to J. B. Plummer, the action was continued in their joint names. The petition alleged that the defendant owed said Katie the sum of fifty dollars for money loaned him by her, also, that defendant owes her $330 for work done by her for defendant at his special instance and request. An account of these items was filed with the petition.

The answer tendered the general issue. It then pleaded that the plaintiff, Katie, at the time of the transactions in controversy, was the wife of Christ. Kleisner, and that she and her husband, with their children...

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