Harris v. Smith

• Decision Date: 28 December 1889
• Citation: 44 N.W. 169,79 Mich. 54
• Court: Michigan Supreme Court
• Parties: HARRIS v. SMITH.

44 N.W. 169

79 Mich. 54

HARRIS v. SMITH.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Action by Eulalia Harris against Albert Smith, administrator of John S. Smith, deceased, to recover for personal services rendered deceased.She recovered verdict and judgment, and defendant brings error.

Ward & Ward, for plaintiff in error.

Clark H. Gleason, for defendant in error.

LONG, J.

Plaintiff was a step-daughter of John S. Smith, deceased.On November 13, 1866, when plaintiff was about nine years of age, her mother married Mr. Smith, then a widower, and went to live with him.Each of the parties had separate estates.The wife owned 80 acres of land and personal property where she had lived before her marriage to Mr. Smith, and her husband owned 80 acres where he lived, and some considerable personal property, and another 40 acres of land.At the time of the marriage the husband had five sons and three daughters, all of whom lived at home, more or less, after the marriage.The wife had four sons and two daughters, by a former marriage some of whom, also, made it their home there.The plaintiff lived there continuously until of age, June 24, 1878, and continued to live there thereafter, and to assist her mother until she was married, December 21, 1883.Plaintiff claims she remained there from her arrival at age until her marriage, assisting about the household duties as defendant's hired servant; working for him with the expectation, on her part, of receiving a compensation, and, on his part, to pay the same.Suit was commenced to recover therefor during the life-time of John S. Smith; but, he having died, the suit was revived in the name of the administrator, and on the trial plaintiff had verdict and judgment for $500.17.

Defendant's first contention is that plaintiff could only recover upon an express promise to pay, and that the trial court was in error in submitting the case to the jury upon the question of an implied promise.Upon this question the court charged the jury: "The relationship existing between the plaintiff and her step-father at the time this claim accrued raises a presumption of law that her services were gratuitous, or, at least, rendered in return for parental care and support; but such presumption is not conclusive against her legal right to recover, in the absence of an express promise to pay for the services.Therefore, if you find that there was no express promise to pay, and yet find, from all the facts and circumstances as shown by the evidence, that her services were rendered in the expectation by her of receiving compensation therefor, and, by the deceased, of paying therefor, she is entitled to recover."We need not state the evidence given on the trial, under which plaintiff's counsel contends that this instruction is correct.We are satisfied the instruction cannot be upheld.The simple fact that services are rendered, under the circumstances claimed does not raise a liability on the part of the person for whom they were rendered to pay therefor.Bartholomew v. Jackson,20 Johns. 28;St. Jude's Church v. Van Denberg,31 Mich. 287;Hertzog v. Hertzog,29 Pa. St. 465;Woods v. Ayres,39 Mich. 351.Where the services are rendered to one standing in loco parentis, there is no implied promise to pay for them, though such presumption may be overcome by the facts and circumstances of the case.Fross'...