Roark v. Dawson, 19109.

• Decision Date: 05 December 1938
• Docket Number: No. 19109.,19109.
• Parties: ROARK v. DAWSON.
• Court: Missouri Court of Appeals

122 S.W.2d 376

ROARK v. DAWSON.

No. 19109.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

"Not to be published in State reports."

Suit by J. L. Roark against John W. Dawson for wages alleged to be due plaintiff from defendant. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

George W. Anson, of Sedalia, and Russell Garnett, of Warrensburg, for appellant.

Gayles R. Pine, of Warrensburg, for respondent.

SPERRY, Commissioner.

Suit by J. L. Roark, who will be referred to herein as plaintiff, against John W. Dawson, defendant, for wages alleged to be due plaintiff from defendant. Trial to a jury resulted in verdict and judgment for defendant. Plaintiff appeals.

The theory of plaintiff's case, as shown by his petition and by his evidence, was that he was employed by defendant to work for him for an indefinite length of time under an oral contract whereby defendant agreed to pay plaintiff "reasonable" wages therefor. Defendant's answer was a general denial. His evidence, and that of other witnesses adduced at his instance, discloses defendant's theory to be that plaintiff stayed at defendant's home under no agreement for pay, but did receive his board and room in exchange for odd chores and work, and was paid for work on defendant's farm, when hired by defendant. The trial court adopted these theories and the case was tried and submitted thereon.

Plaintiff testified that defendant came to the room where he was then staying and requested him to come to his home and work for him so long as defendant was satisfied with his services, and told him he would pay him reasonable wages; that pursuant to said agreement he worked for defendant from about October 30, 1934, continuously, until September 17, 1936; that he cooked, laundered, kept house, acted as chauffeur, did farm labor of various kinds, chored, and performed valet services; that the reasonable value of said services was $3 per day; that during the two years he worked for him he was paid in cash $14 at one time and $8 at another. He did not claim to have ever demanded to be paid any other sum, either while he worked or at the time he ceased working.

Several witnesses, testifying on behalf of plaintiff, gave evidence of plaintiff's work around the Dawson home, and of his driving the defendant's car; but none testified regarding the terms of the contract of employment, nor made any reference thereto.

Defendant testified that plaintiff volunteered to start his car for him on an occasion when defendant was having trouble with it, and that he invited plaintiff to ride home with him and stay all night; that plaintiff accepted the invitation and stayed some two years, until defendant requested him to leave; that he never employed him at any time, excepting only that on two different occasions, once in 1935 and once in 1936, he employed him, and paid him, to work in hay; that plaintiff lived at defendant's home (both being single) and that, during the major portion of the time, they alone occupied the house; that both did chores, house work and cooking; that both drove the car and that defendant did not contract with plaintiff for the latter to act as chauffeur, but that plaintiff used the car whenever he wished for his own pleasure, and sometimes drove for defendant; that plaintiff milked, fed the stock, did housework and generally helped about the place and occasionally did odd work on the farm, but never, except for haying, was he hired therefor; and that plaintiff occasionally shaved defendant, but that he had another hired man at the farm who came in once a week and laundered, shaved defendant, and did other chores about the place.

Several witnesses, testifying for defendant, stated that plaintiff had told them on divers occasions that he stayed at defendant's home and received board and room in exchange for general work, but that he did not receive any pay. From a reading of the record, some of such witnesses appear to have been closer friends and associates of plaintiff than they were of defendant.

The issue was whether plaintiff contracted to pay defendant reasonable wages for his services, as contended by plaintiff, or whether plaintiff merely made his home with defendant and rendered services gratuitously, in exchange for board and lodging, as claimed by defendant. In brief, the jury was called on to determine whether or not defendant contracted to pay plaintiff reasonable wages for his services. The jury has found for defendant on this issue, and, there being substantial evidence upon which such a finding can rest, we cannot disturb the verdict unless we find error affecting the merits of the case. While plaintiff made a submissible case on his theory, there was ample evidence for the jury to find in favor of defendant on his theory.

Reversal is urged because the court gave, at the request of defendant, instruction numbered five. The instruction is criticised on the ground that it submitted a question of law to the jury, in that it required the jury to find whether or not there was a contract between the parties but wholly failed to define a contract. The instruction complained of is in words and figures to-wit: "The Court instructs the jury that the burden of proof rests upon the plaintiff and before he can recover from (sic) this action he must show to the satisfaction of the jury by preponderance or greater weight of evidence that there was a contract of employment between plaintiff and defendant, and if the plaintiff does not prove said contract to your satisfaction then your verdict must be for the defendant." (Italics ours).

It is well settled law, requiring no citation of authority, that each instruction should be read with reference to the other instructions in the case. Instruction A given for plaintiff is as follows: "The Court instructs the jury that if you find and believe from the evidence that on or about the 30th day of October, 1934, the defendant employed the plaintiff as a servant for an indefinite...