Kirchgassner v. Rodick

• Decision Date: 30 March 1898
• Citation: 49 N.E. 1015,170 Mass. 543
• Parties: KIRCHGASSNER v. RODICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 543

49 N.E. 1015

KIRCHGASSNER v. RODICK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1898

COUNSEL

M.J. Creed and J.P. Crosby, for plaintiff.

R.M Saltonstall and G.M. Cushing, for defendant.

OPINION

MORTON J.

The plaintiff seeks in this action to recover from the defendant one-half of the sum alleged to be due from him for 22 years' use and occupation, from September, 1870, to September, 1892, of certain premises, of which she inherited one-half from her father, in 1870, and the other half from her mother, in 1891, and for 13 years' services as a domestic, from August, 1879, to September, 1892.In regard to the claim for use and occupation it is agreed that the plaintiff's father died in 1870, seised of the premises and leaving a widow, the plaintiff's mother, and, as his sole heirs at law, the plaintiff and her sister; that dower never was assigned to the widow; that she was married to the defendant in September, 1870; that the plaintiff's sister died, unmarried and intestate, in 1889, leaving her mother surviving her; and that the defendant's wife died in June, 1891, leaving the plaintiff as her sole heir at law.We assume, though it is nowhere distinctly stated in the bill of exceptions, that the plaintiff's father was occupying the premises with his family at the time of his death, and that the widow and children continued in occupation thereafter and that, when the defendant married the plaintiff's mother, he went there to live, and that there were no children born of this marriage.It is uncontroverted that he lived there till September, 1892.There was no evidence tending to show an express contract on the part of the defendant, before his wife's death, to pay for the use of the premises, and there was no implied contract unless one arose as matter of law.Without a contract, express or implied, an action for use and occupation cannot be maintained.Rogers v. Coy,164 Mass. 391, 41 N.E. 652;Mills Co. v. Hart,124 Mass. 123;Merrill v. Bullock,105 Mass. 486.

Assuming that the defendant was the head of the family, and that he was bound to provide a home for them, we think that his occupation of the premises must be referred, so long as his wife lived, to her interest in them, and be deemed to have been with her license or permission.Southworth v. Edmands,152 Mass. 203, 25 N.E. 106;Plaisted v. Hair,150 Mass. 275, 22 N.E. 921.Under Pub.St. c. 124, § 13, she had a right to occupy the premises without having her dower assigned, so long as the heirs did not object.Anthony v. Anthony,161 Mass. 343, 37 N.E. 386;Hastings v. Mace,157 Mass. 499, 32 N.E. 668.The fact that the heirs were minors, and that she was their guardian, did not compel her to have her dower assigned, or take the case out of the statute above cited.That statute enlarges the rights of the widow, and renders her occupation lawful without an assignment of dower, unless the heirs object.Anthony v. Anthony, supra;Hastings v. Mace, supra.And there is nothing which confines its operation to cases where the heirs are of age, or where, if they are minors, some other person than the widow is their guardian.In addition to the right of occupancy which her inchoate right of dower gave her, the defendant's wife inherited from her daughter, on the latter's death in 1889, an undivided half of the premises.Pub.St. c. 125, § 1, cl. 4.And on the death of his wife, in 1891, the defendant became entitled for life to a one-half interest in the estate of which she was seised and possessed.Id.c. 124, § 1;St.1885, c. 255, § 2.So that, from that time till he left, in September, 1892, he was in occupation in his own right.During the whole period, therefore, his occupancy was of such a nature that no action can be maintained against him for use and occupation; since it is settled that one who is in as tenant in common or by virtue of the right of a tenant in common is not liable to another tenant in common for use and occupation, though occupying the entire premises.Badger v. Holmes, 6 Gray, 118;Austin v. Ahearne,61 N.Y. 6, 14; Schouler, Dom.Rel. (1st Ed.) 378.

In regard to the claim for services, there was testimony tending to show that, after the defendant married the plaintiff's mother, the family consisted of the defendant, his wife, and the plaintiff and her sister, the plaintiff being about four years old, and her sister two years and a half older; that a boarding and lodging house business was begun on the premises in 1877, and was continued till some time after the death of defendant's wife; that the plaintiff left school when 13 years of age, and, commencing then, worked about the house, doing general housework, until 1892, with the exception of about 6 months at one time, and 3 months at another, when she worked at dressmaking; and that her mother and her sister also worked there so long as they lived.There was nothing to show that any account was kept of the plaintiff's services, or of her board, or of money that was expended for or given to her, or that she was ever paid any wages.The uncontradicted testimony tended to show that she was cared for and supported and treated in all respects, as well after she arrived at 21 as before, as one of the family, and that the relation between the defendant and her was that of parent and child, and not that of master and servant.Under such circumstances, she is not entitled, as matter of law, to recover for the services which she rendered; and it cannot be held that the ruling of the court was erroneous.Livingston v. Hammond,162 Mass. 375, 38 N.E. 968;Mulhern v. McDavitt,16 Gray, 404;Bundy v. Hyde,50 N.H. 116;Davis v. Goodenow,27 Vt. 715;Harris v. Smith,79 Mich. 54, 44 N.W. 169;Disbrow v. Durand,54 N.J.Law, 343, 24 A. 545.

Although it has been said in some cases that the question whether there was an understanding or agreement to pay for the services is one of fact for the jury, in order to warrant its submission to them there must be circumstances from...