Einolf v. Thompson

• Citation: 103 N.W. 1026,95 Minn. 230
• Parties: EINOLF v. THOMPSON.
• Decision Date: 16 June 1905
• Court: Supreme Court of Minnesota (US)

95 Minn. 230

103 N.W. 1026

EINOLF

v.THOMPSON.

Supreme Court of Minnesota.

June 16, 1905.

Appeal from District Court, Clay County; L. L. Baxter, Judge.

Action by Jessie Einolf against William Thompson. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding the verdict, or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. 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 parent, the presumption is that no payment is expected for services rendered or support furnished by 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.

2. Upon the evidence in this case, the jury was justified in finding that the presumption was rebutted.

3. Damages awarded by a jury, not exceeding the demand of the complaint, and fairly within a credible part of the testimony, although in excess of the plaintiff's own estimate, are not necessarily so excessive as to require that the verdict be set aside.

4. Where a question is properly asked, and most of the answer thereto is proper, and only a part of that answer is improper, a motion to strike out the whole is properly denied. F. H. Peterson, for appellant.

Chas. S. Marden, for respondent.

JAGGARD, J.

In this case plaintiff sued for personal services as a household servant, claimed to have been rendered by her to defendant. The answer 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 parent, * * * the presumption is that no payment is expected for services rendered or support furnished by 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. Cy. Law (2d Ed.) 1061. And see Donahue v. Donahue, 53 Minn. 461, 55 N. W. 602;Wetherill v. Canney, 62 Minn. 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. It 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...