Edelen v. Herman

• Decision Date: 03 February 1915
• Citation: 162 Ky. 500,172 S.W. 936
• Parties: EDELEN v. HERMAN.
• Court: Kentucky Court of Appeals

172 S.W. 936

162 Ky. 500

EDELEN v. HERMAN.

Court of Appeals of Kentucky.

February 3, 1915

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Fourth Division.

Action by Dora Herman, by her next friend, against R. H. Edelen. Judgment for the plaintiff, and defendant appeals. Reversed with directions to grant a new trial.

Sheild Campbell & McAtee, of Louisville, for appellant.

E. C Wurtele and Samuel J. Levy, both of Louisville, for appellee.

TURNER J.

Dora Herman, by her next friend, A. Herman, instituted this action against appellant for a balance claimed under the terms of an express parol contract for domestic services rendered by her in appellant's home for 49 weeks at the contract price of $10 per week.

Appellant answered, not denying the rendition of the services, but claiming they were rendered under another and different contract, by the terms of which he was to pay appellee $8 per month and her board and lodging for such services, and that same had been fully paid.

Appellee is a German girl who, at the time of the contract, had been in this country only a short time, was only 16 years of age, and spoke very little English. Her father came to this country with her from Germany, and he likewise spoke English very indifferently. The father claimed to be a distiller, and, hearing that appellant was the owner or the manager of two distilleries, sought him upon several occasions with a view of procuring employment for himself. Upon one of these occasions it developed that he had this daughter for whom he desired to procure employment as a domestic in a home where she would be protected from the temptations of the city.

It is the theory of the plaintiff that, at the time of the employment of the daughter by appellant, he also agreed that he would at some future time give her father employment as a distiller at $75 per month, and that, when such employment of the father should begin, the daughter's wages should be reduced to $6 per week; but that, as the father was never given such employment under the terms of the contract, the daughter was entitled to $10 per week for the whole term of service.

It is the theory of the defendant that the father approached him, told him he was anxious to get his daughter in a home where she might be protected, and that appellant told him to bring the daughter to his home and he would let his housekeeper see whether or not she could employ her; that the father and daughter did come to his home and were told that the housekeeper would give her employment, and she would be paid such wages as the housekeeper might think she was worth, after a trial; and that thereafter her wages were fixed by the housekeeper at $8 per month, and this fact was communicated to her father, and that the prospective employment of the father as a distiller had no connection whatever with the employment of the daughter.

Appellee and her father testified to the contract as set out in her pleadings, and appellant and his housekeeper testified to the contract as set out in his answer. The jury found a verdict for the full amount claimed by the plaintiff, and, from a judgment on that verdict, this appeal is prosecuted.

Appellee, as stated, was only 16 years of age at the time, and was a skilled domestic in no particular. On the trial the defendant offered to prove the real value of the services rendered by the plaintiff, and offered to prove by her former employer that she had been employed by him as a domestic just before she went to defendant's home, and that he paid her $2 per week for her services; that she was unable to speak English, except with difficulty, and was an unskilled domestic, and was worth only the wages which he had paid her. Treating that as an offer to prove the customary price of services similar to those rendered by the plaintiff at the time and place of performance, the question arises: Under the state of the pleadings in this case, was such evidence competent as tending to show the real contract between the parties? Manifestly it was not competent to vary the terms of the contract between the parties; but where only the rate of payment for services under the contract was in issue, and there was such wide divergence between the parties as to the contract price, was it not competent as bearing upon which claim was probably correct?

By way of illustration, if a farm laborer should institute an action against his employer and...