Riley v. Riley et at.
| Decision Date | 08 June 1893 |
| Court | West Virginia Supreme Court |
| Parties | Riley v. Riley et at. |
Where a minor lives with his uncle as a member of his family, the uncle furnishing him with food, rahman t 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 can not 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.
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.
J. R. Donehoo, of counsel for appellee cited Abb. Tr. Ev. 368; 1 Greenl. Ev. § 207; 20 W. Va. 410; 2 S. E. Rep. 454; Steph. Ev. Art. 15; 17 S. E. Rep. 96; Schon. Dom. Rel. § 274; 1 Greenl. Ev. § 138; 28 N. E. Rep. 651; 14 8. E. Rep. 12;30 W. Va. 27; 29 W. Va. 98; 28 W. Va. 379; 26 W. Va. 30; 20 W. Va. 183; 34 W. Va. 766; 21 W. Va. 709; 26 W. Va. 338; 13 S. E. Rep. 391.
J. J. Jacob, for defendant in error cited 1 Bl. Com. 453; 2 Kent. Com. 179; Id. 201; Wood Mas. & Serv. 15-22; Sch. Dom. Eel. 252; Code c. 82, s. 7; Id. c. 122; Id. e. 46, s. 14; 9 Pa. St. DeFranee v. Austin; 59 Vt, 505; 3 X. Y. 312; l Yeates 209; 4 Yeates 353; 28 N. Y. 494; 46 Vt. 571; 17 Vt. 560; 15 X. II. 486; 15 Pick. 510; 4 Mass. 675; 4N Y. 38; Wood M. & S. 60; 2 Law. Rights and Rem. § 810; 39 la 681; 3N Y. 312; 60 N. II. 20 (49 Am. R302); 9 Pa. St. 309; 79 Pa. 421, 427; 105 Pa. 266, 267; 111 Pa. 460; 126 Pa. 404; 96 N. C. 149; 65 la, 57; 58 Vt. 875; 41 Kan. 206; 29 W. Va. 431; 59 Vt, 505 (10 Atl. Rep. 722); Hurst Adm'r, v. Hite, Adm'r, 20 W. Va. 183; Fisher v. Fisher, 5 Wis. 472; Rob. Forms 135.
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, defendand in error, against William II. 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 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 one thousand two hundred dollars 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 impanelled 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 one thousand one hundred dollars.
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.: One thousand one hundred dollars, with interest from the 5th day of December, 1891, and costs, and signed and certified, as par: 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 thejury, 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 2nd day of February, 1878. He was twelve 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 twenty one 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 three hundred weeks at an average of four dollars 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 one thousand two bun- drecl dollars. He began this work at seven in the morning, quitting sometimes at five and sometimes at six 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 his uncle's cows, take the milk and sometimes vegetables across the river to the customers, and when rot engaged at the pottery, he was employed in sawing wood and doing various kinds of work about his uncle's house and farm. During the time, Enoch Riley said he intended to provide for the plaintiff, Isaac, just the same as for his ow 11 children. The money from the potteries wras 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 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 twenty one 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 grantuitous promise, but was supported by a sufficient consideration; that he took upon himself the character of a trustee of the fund, receiving it under such circumstances as made him legally responsible therefor.
It appears from the testimony, that Enoch Riley told one of the witnesses, that he and Isaac had had a falling out; that Isaac had his clothes tied up, and said he was going to leave; that he told Isaac that he could not leave because he was adopted, and that he would follow him; that the trouble amounted to nothing; that he found Isaac truthful and honest in every respect; and that he intended to provide for him as he did for his own children when he came of age.
By chapter 122 of the Code, as amended by act of March 20, 1882, and as the law now stands, he could have adopted his nephew, in which case he would have been invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to him in lawful wedlock; and the child would have been invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the right of inheritance in the estate of such adopting parent or parents, as if born to them in lawful wedlock with certain exceptions not material here. See Code c. 122, s. 4. So, under chapter 81, Code, plaintiff might have been bound as an apprentice to his uncle, to continue until he had attained the age of twenty one years.
But neither of these things was dons. Plaintiff worked first in the pottery of Knowles, Taylor & Knowles, but at what wages, if any, and for what time, does not appear, except that it did not extend into the latter part of the year 1879, for at that time he went into the pottery of Laughlin, where he did work, "running molds" for about two years up to Christmas, 1881, receiving during the first year three dollars and fifty cents per week, and the second year four dollars per week, working about ten days in the two weeks,...
To continue reading
Request your trial