Plummer v. Trost

• Decision Date: 30 April 1884
• Citation: 81 Mo. 425
• Parties: PLUMMER et al. v. TROST, Appellant.
• Court: Missouri Supreme Court

81 Mo. 425

PLUMMER et al.

v.TROST, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jefferson Circuit Court.--HON. L. F. DINNING, Judge.

REVERSED.

W. H. H. Thomas for appellant.

The court erred in refusing to instruct the jury, at the close of plaintiffs' case, that plaintiffs could not recover on the pleadings and evidence. Plaintiffs' evidence showed that Mrs. Plummer, when she rendered the alleged service for appellant, was the wife of Chris. Kleisner, and she eaed no wages by her separate labor, as contemplated by section --, of an act in regard to married women, passed in 1875. Sess. Acts 1875, p. 61, § --. There should have been a contract with her, or husband, that she should perform the service, and enjoy the wages received as her own, or she should have performed the service under such circumstance as the court might infer she and husband both intended for her to receive and retain her wages for herself. Working in her husband's family, aiding him, and in conjunction with him, will not be sufficient to entitle her, under the above statute, to her separate earnings. Reynolds v. Robinson, 64 N. Y. 589; Bean v. Kiah, 4 Hun 171; Adams v. Curtis, 4 Lous. 164; Fier v. Railroad Co., 49 N. Y. 47; Kirkbeck v. Ackroyd, 11 Hun 365; Hazelboker v. Goodfellow, 64 Ill. 238; Lominer v. Kelly, 10 Kas. 298; McClusky v. Sav. Ins,103 Mass. 300; Kelly v. Drew, 12 Allen 107; Wells' Separate Property of Married Women, §§ 126, 127, 128, and cases cited; Hunt v. Spencer, 20 Kas. 131; Coughlin v. Ryan, 43 Mo. 99; Kidnell v. Kirkpatrick, 70 Mo. 214; Welch v. Welch, 6 Mo. 57; National B'k v. Sprague, 5 C. E. Green.Byrnes & McMullin for respondents.

PHILIPS, C.

This action was begun in the name of Katie Kleisner against the defendant. She having married, pendente lite, to J. B. Plummer, the action was continued in their joint names. The petition alleged that the defendant owed said Katie the sum of fifty dollars for money loaned him by her, also, that defendant owes her $330 for work done by her for defendant at his special instance and request. An account of these items was filed with the petition.

The answer tendered the general issue. It then pleaded that the plaintiff, Katie, at the time of the transactions in controversy, was the wife of Christ. Kleisner, and that she and her husband, with their children, came to defendant's home to live as members of his family, and for their services in and about the premises they should receive their board and bed, as also their clothing and medical attention. The answer tendered the issue that plaintiff being a femme covert could not recover for her services rendered to defendant.

The cause was submitted to a jury for trial. The only witnesses testifying to the arrangement between plaintiff and defendant were themselves. It appears that the plaintiff and her husband, Christ. Kleisner, lived in Ste. Genevieve county prior to January, 1876. They had a little home there, but were quite poor. They then had two children. According to plaintiff's testimony the defendant in 1875 wrote to them to sell out and come to his home and live with him. At first they declined, but finally consented after much solicitation on defendant's part. The letters were lost. Defendant's proposition to them was that if they would come they would work his farm and live together; that what they made together “we could have together, that what we could earn we could have.” She denied that they were to work for defendant on the terms alleged in the answer. She, also, stated that when they went to defendant's home he said he would build them a house and give them a piece of land, which he never did. She made proof of the reasonable value of her services. The evidence of plaintiff and other witnesses showed that she and her husband, in connection with defendant, carried on the farm, that the plaintiff worked constantly in the house as cook and otherwise, and, also, on the farm as a hand. They raised valuable crops, etc. While at defendant's home another child was born to her. The expenses of the entire household, which were comparatively inconsiderable, were borne by defendant. Nothing was paid her or her husband by defendant for their labor. They worked for him from January, 1876, to February, 1879, when the husband died. She continued to work there until July, 1879, when she left. She, also, stated that $50, which was a part of the proceeds of their farm, sold in Ste. Genevieve county, they loaned to defendant. Defendant's testimony tended to sustain the allegations of his answer. The jury found the issues for the plaintiff and returned a verdict for the sum of $168. After an ineffectual effort for a new trial, the defendant appealed to this court.

I. We do not see how this judgment can stand. The plaintiff, Katie, at the time of rendering the services sued for was a married woman, with the exception of about five months. At common law the wages for the services of the wife belonged to the husband. Schouler H. & W., 294, 295. The presumption is, that any services performed by the wife for another for a compensation, are rendered on the husband's behalf. It is, therefore, incumbent on the wife to show that the services were rendered under circumstances indicating an intention or understanding that she should receive the pay therefor. Morgan v. Bolles, 36 Conn. 175, 176. Even under statutes so far innovating upon the common law as to enable married women to hold in their own right property acquired by purchase, grant or gift, the earnings of the wife are not drawn within its operation by implication. Riderv. Hulse, 33 Barb 264; Bear v. Hays, 36 Ill. 280; Hoyt v. White, 46 N. H. 45. The act of 1875 (Laws of Missouri, 1875, pp. 61, 62) provides that: “Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, etc., shall * * be and remain her separate property.” While this statute gives the wife her wages, it is to be observed that it is limited to the wages “of her separate labor.” The very foundation, therefore, of her right to such wages depends upon the fact whether the services were for her ““separate labor.” Under similar statutes allowing the wife her earnings, the accepted construction is, that when her labor is performed on account of, or in connection with the husband, or is bestowed on his business, or where there is nothing in the terms or circumstances of the contract to indicate an intention or purpose to concede to her the fruit of the...