Riley v. Riley

CourtSupreme Court of West Virginia
Writing for the CourtHOLT
Citation18 S.E. 569,38 W.Va. 283
PartiesRILEY . v. RILEY et al.
Decision Date18 November 1893

18 S.E. 569
38 W.Va.
283

RILEY .
v.
RILEY et al.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1893.


Persons in Loco Parentis—Liability for Services.

1. Where a minor lives with his uncle as a member of his family, the uncle furnishing him with food, raiment, and shelter, and the minor rendering to his uncle his services, without any contract or mutual understanding as to compensation for support or wages to be paid, such minor cannot recover from the uncle, nor from his personal representative, the value of the services thus rendered, though the value of such services may have been greater than the value of such support.

2. But the uncle may give or release to such minor the right to his wages earned elsewhere, if it affirmatively appear, or may fairly be inferred from the nature and circumstances of the case, that such was the understanding of the parties, —a question of fact to be determined by the jury subject to the proper control of the court.

3. A case in which these two principles are applied.

(Syllabus by the Court.)

Error to circuit court, Hancock county.

Action in assumpsit by Isaac Riley against William H. Riley and another, executors. Plaintiff had judgment, and defendants bring error. Affirmed.

W. J. Huff and Ewing, Melvin & Riley, for plaintiffs in error.

John J. Jacob, (J. R. Donehoo, of counsel,) for defendant in error.

HOLT, J. The common-law system of pleading, as modified by statute, still prevails in this state. This is an action of assumpsit, brought in the circuit court of Hancock county on the 10th day of January, 1891, by Isaac Riley, defendant in error, against William H. and Frederick J. Riley, as executors of the will of Enoch Riley, deceased; the declaration containing two of the common counts in assumpsit, —one for work and labor, and the

[18 S.E. 570]

other for money had and received. Plaintiff also, according to the requirement of section 11, c. 125, Code, filed with his declaration an account or bill of particulars, stating distinctly the several items of his claim, amounting to the sum of $1,200, as sued for and set out in the declaration. It was composed of two items, viz.: The price paid for plaintiff's labor in the East Liverpool potteries, and received by defendants' testator, from March, 1878, to February, 1887; (2) the value of the work done by plaintiff for testator during the same period, when he was not at work in the potteries. On November 12, 1891, defendants appeared by their attorneys, and entered the plea of non-assumpsit, issue was joined, and a jury impaneled and sworn to try the same. Twelve witnesses were examined on behalf of plaintiff; none was called by defendants. During the progress of the trial, defendants moved to exclude parts of the testimony of certain witnesses on the ground of incompetence, but the court overruled the motions, and defendants excepted, and, at the conclusion of plaintiff's testimony, defendants moved to exclude it, without saying upon what ground. This motion the court overruled, and defendants excepted. Defendants offered no testimony, and, the case being submitted to the jury, they brought in a verdict for plaintiff for $1,100. The defendants then moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence, and because of the rulings made during the trial; but the court overruled the motion, and rendered judgment for the damages found by the jury, viz. $1,100, with interest from the 5th day of December, 1891, and costs, and signed and certified, as part of the record, defendant's bill of exceptions setting out all the evidence.

Passing by, for the present, the question raised during the examination of the witnesses, and considering the motion for a new trial, the question is, what are the facts proved, or what does the evidence fairly tend to prove? For unless the verdict is without evidence to support it on some essential point, or plainly insufficient to warrant the finding of the jury, the ruling of the court below must be sustained. For our purpose, and in the present attitude of the case, the record discloses the following facts: The plaintiff, Isaac Riley, was born in England. His parents came to Trenton, N. J., where his mother died December 2, 1875, and his father on the 2d day of February, 1878. He was 12 years old on the 19th day of February, 1878. He came to the house of his uncle, Enoch Riley, the testator of defendants, in March, 1878, where he made his home as a member of his uncle's family until he was 21 years of age. His uncle, in 1879, obtained work for him, where some of his sons were at work, in the East Liverpool potteries, across the Ohio river, where he worked about 300 weeks at an average of $4 per week, which was paid to him in money every two weeks, and which he took home and delivered to his uncle, amounting in the aggregate to about $1,200. He began this work at 7 in the morning, quitting sometimes at 5, and sometimes at 6, o'clock in the evening. A full week was six days, but the potteries ran on an average, in his kind of work, only about ten days of the two weeks. He was honest, of good habits, and industrious. It was his business to help milk the cows of his uncle, take the milk, and sometimes vegetables, across the river to the customers, and, when not engaged at the pottery, he was employed in sawing wood and doing various kinds of work about the house and farm of his uncle. During the time, Enoch Riley said he intended to provide for (the plaintiff) Isaac just the same as for his own children. The money from the potteries was brought home in an envelope, and he would sometimes refer to it as Isaac's money. He induced his nephew to buy a lot from him, and to build a house on it, he furnishing the money and taking a mortgage, which is still subsisting; but he said to one of the witnesses that he intended to leave the house to Isaac, —to release the mortgage. This was when Isaac was not present, but he did sometimes in his presence speak of his nephew being a good boy, and of his turning over his wages to him. To another witness he frequently said that "he intended to recompense Isaac for his work." On the part of defendants it is claimed that Enoch Riley, the testator, stood in loco parentis to the plaintiff from the time he was taken into his family as a member thereof until he attained the age of 21, and was entitled to his services and his earnings. On the other hand, it is claimed for plaintiff that the relation of father and son did not exist in contemplation of law, as to the matter here involved, and that, if it did, there is enough in the testimony to warrant the jury in saying that plaintiff had been emancipated as to the right to the wages earned by him in the potteries, or that there was enough to warrant them in drawing the inference that Enoch Riley promised plaintiff that he would receive and hold such wages for plaintiff's use and benefit, to be paid over or accounted for when he attained his majority; and that such promise was in no view a merely...

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12 practice notes
  • Cann v. Cann
    • United States
    • Supreme Court of West Virginia
    • 19 Diciembre 1894
    ...in very great doubt, especially when the incompetent testimony is expunged from the record. In the case of Riley v. Riley, 38 W. Va. 290, 18 S. E. 569, Judge Holt, quoting from 17 Am. & Eng. Enc. Law, 336, states the law governing cases of this character as follows, to wit: "But where it is......
  • Keys v. Keys, (No. 4682.)
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1923
    ...proposition are our cases of Stansbury v. Stansbury's Adm'rs. 20 W. Va. 23, 31; Hurst's Adm'r v. Hite, 20 W. Va. 183; Riley v. Riley, 38 W. Va. 283, 18 S. E. 569; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Thompson v. Halstead, 44 W. Va. 390, 29 S. E. 991; Swiger v. Evans, 75 W. Va. 236, 83......
  • Plate v. Durst.
    • United States
    • Supreme Court of West Virginia
    • 4 Abril 1896
    ...72, 76, 100, 189; 3 Am. & Eng. Enc. Law, 860; 8 Id. 658, 660, 661; 17 Id. 336, 339; 28 W. Va. 378; 385, 386; 31 Gratt. 52; 20 W. Va. 23; 38 W. Va. 283; 31 W. Va. 340-1; 41 W. Va. 481; 38 W. Va 456, 645, 727; 41 W. Va. 445; 37 W. Va. 606; 20 W. Va. 23; 63 Conn. 530, 543; 38 K E. Rep. 826; 36......
  • Taber v. McGregor
    • United States
    • Court of Appeals of Kentucky
    • 25 Octubre 1921
    ...375, 26 N.W. 643; Defrance v. Austin, 9 Pa. 309; Hicks v. Barnes, 132 N.C. 146, 43 S.E. 604; Andrus v. Foster, 17 Vt. 556; Riley v. Riley, 38 W.Va. 283, 18 S.E. 569. In some of the cases decided by this court it was held that to authorize a recovery for such services where the relationship ......
  • Request a trial to view additional results
12 cases
  • Cann v. Cann
    • United States
    • Supreme Court of West Virginia
    • 19 Diciembre 1894
    ...in very great doubt, especially when the incompetent testimony is expunged from the record. In the case of Riley v. Riley, 38 W. Va. 290, 18 S. E. 569, Judge Holt, quoting from 17 Am. & Eng. Enc. Law, 336, states the law governing cases of this character as follows, to wit: "But where it is......
  • Keys v. Keys, (No. 4682.)
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1923
    ...proposition are our cases of Stansbury v. Stansbury's Adm'rs. 20 W. Va. 23, 31; Hurst's Adm'r v. Hite, 20 W. Va. 183; Riley v. Riley, 38 W. Va. 283, 18 S. E. 569; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Thompson v. Halstead, 44 W. Va. 390, 29 S. E. 991; Swiger v. Evans, 75 W. Va. 236, 83......
  • Plate v. Durst.
    • United States
    • Supreme Court of West Virginia
    • 4 Abril 1896
    ...72, 76, 100, 189; 3 Am. & Eng. Enc. Law, 860; 8 Id. 658, 660, 661; 17 Id. 336, 339; 28 W. Va. 378; 385, 386; 31 Gratt. 52; 20 W. Va. 23; 38 W. Va. 283; 31 W. Va. 340-1; 41 W. Va. 481; 38 W. Va 456, 645, 727; 41 W. Va. 445; 37 W. Va. 606; 20 W. Va. 23; 63 Conn. 530, 543; 38 K E. Rep. 826; 36......
  • Taber v. McGregor
    • United States
    • Court of Appeals of Kentucky
    • 25 Octubre 1921
    ...375, 26 N.W. 643; Defrance v. Austin, 9 Pa. 309; Hicks v. Barnes, 132 N.C. 146, 43 S.E. 604; Andrus v. Foster, 17 Vt. 556; Riley v. Riley, 38 W.Va. 283, 18 S.E. 569. In some of the cases decided by this court it was held that to authorize a recovery for such services where the relationship ......
  • Request a trial to view additional results

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