Button v. Higgins

• Decision Date: 22 October 1894
• Citation: 38 P. 390,5 Colo.App. 167
• Parties: BUTTON v. HIGGINS.
• Court: Colorado Court of Appeals

38 P. 390

5 Colo.App. 167

BUTTON v. HIGGINS.

Court of Appeals of Colorado

October 22, 1894

Appeal from district court, Arapahoe county.

Action by Maggie Higgins against Sarah L. Button on a contract for services. Judgment for plaintiff, and defendant appeals. Affirmed.

On the 5th day of May, 1892, appellee instituted suit against appellant, claiming by her complaint that the defendant (appellant) was indebted to her in the sum of $1,890, being balance due for labor and services performed for the defendant, "at her special instance and request," as a general house servant, between May 1, 1885, and May 1 1892, and that such services were reasonably worth $25 per month; that the amount so earned was $2,050, on which defendant had paid $160, leaving a balance as claimed above. A demurrer was filed to the complaint, which was overruled and the defendant answered: (1) Denying specifically each and every allegation of the complaint; (2) a special answer setting up that from a time previous to December 1, 1875, and up to November 28, 1891, defendant was the wife of Henry Button, who died on the 28th of November, 1891; that about December 1, 1875, the mother of the plaintiff was a poor widow, with a large family of children whom she was trying to support by her own labor; that she gave the plaintiff, who was then a little girl, to Henry P Button, who received the plaintiff into his family, and who ever afterwards occupied to her the relation of a parent that from the time plaintiff entered his family, until the time of his death, he maintained, clothed, and educated plaintiff the same as he would or should have done had she been his own child; that from the time of the death of the said Button until about March 1, 1892, plaintiff remained with the defendant upon the same terms as she had previously made her home with Henry Button; that during all the time plaintiff took the name of Button, and was so known, and never at any time took the position or rendered any services as a servant; that whatever services she rendered were rendered gratuitously, and as a member of the family of said Button, during his lifetime, and as a member of the family of defendant after the death of Button; that the said Henry Button during his lifetime, and defendant after his death, stood to the plaintiff in loco parentis; that while the plaintiff lived with Button and with defendant she never claimed to be a servant, or asked for wages, or intimated that anything was due her; that whatever money was ever furnished the plaintiff was a present, and was never paid as wages or as anything that was due her. The replication was a general denial of the matters contained in the answer. The case was tried to a jury, resulting in a verdict and judgment for $1,224.

S.S. Abbott and H.B. Johnson, for appellant.

H.C. Davis, for appellee.

REED J. (after stating the facts).

The testimony establishes the fact that in 1875, at the age of 11 or 12, appellee was taken into the family of Dr. Button, then living in the state of Iowa. Though not adopted, she was cared for, treated, and maintained as one of the family,--sent to school until she was 16; after that she, in common with Mrs. Button and a daughter of Mr. Button of a former wife, performed the duties of the house, though it is shown a servant was kept a part or all the time while the family resided in Iowa. In 1885 the family removed to Denver. No servant was kept; the household labor was performed by Mrs. Button, daughter, and appellee. The family was quite large, and for a time boarders were kept. Dr. Button supported the family while living. Appellant had quite a property invested in real estate. In 1885, appellee, then 21 or 22 years old, proposed to leave the family, and enter upon some occupation. Up to this time there is no question of the relation that existed. Dr. Button and Mrs. Button stood in loco parentis to her; she was treated and cared for the same as other members of the family; and no question had been raised in regard to compensation. It is claimed by appellee that on or about May 1, 1885, an agreement or contract was made with appellant whereby she was to receive wages for her services, and that under such agreement she continued the service until March 1, 1892, when she was nearly 29 years old, having lived with the family about 17 years. The testimony of appellee in regard to the alleged contract for the payment of wages was as follows: "Mrs. Button only furnished me cotton clothes during the last seven years. Inherited more than one hundred and forty dollars ($140), and loaned Mrs. Button one hundred...