Western Oil Ref. Co. v. Underwood, 12060.

• Decision Date: 13 October 1925
• Docket Number: No. 12060.,12060.
• Citation: 149 N.E. 85,83 Ind.App. 488
• Parties: WESTERN OIL REFINING CO. v. UNDERWOOD.
• Court: Indiana Appellate Court

83 Ind.App. 488

149 N.E. 85

WESTERN OIL REFINING CO.

v.UNDERWOOD.

No. 12060.

Appellate Court of Indiana, Division No. 1.

Oct. 13, 1925.

Appeal from Circuit Court, Owen County; Jess B. Fields, Judge.

Action by Mattie Underwood against the Western Oil Refining Company. Judgment for plaintiff, and defendant appeals. Reversed.

Chas. O. Roemler, Isaac Carter, and Harry F. Rust, all of Indianapolis, for appellant.

H. A. Lee and Miers & Corr, all of Bloomington, for appellee.

REMY, C. J.

In September, 1914, William G. Underwood was employed by appellant as manager of its oil station located in the city of Bloomington, and continued in such employment for more than seven years. Under his contract, it was the duty of Underwood to sell and deliver oil and gasoline in, and in the vicinity of, Bloomington, which was his place of residence. At the time he was employed, and at all times thereafter during the term of his employment, Underwood and his family resided in the same dwelling house with his parents and his sister, appellee herein, in which house was, at the time he took the employment, a telephone that was listed in the name of his father. Soon after Underwood commenced work under his contract of employment, the telephone was, at his suggestion, listed in the name of appellant, though the number and location of the instrument were not changed, after which all tolls for its use were paid by appellant, but, as formerly, the telephone was in general use by all members of the household. The telephone was sometimes used by customers in placing orders, and by Underwood, who from various points on his routes would call and make inquiry as to what orders had been placed in his absence. The calls were of daily occurrence, and for the most part were answered by appellee, who was, at different times during her brother's employment, paid small sums of money for services rendered in connection with the telephone; the money being paid by her brother from his own funds, and no report thereof being made to appellant, though under his contract of employment he was required to, and did make, weekly reports of all expenses incurred by him on behalf of appellant. Underwood had no authority as agent of appellant to employ his sister or any one else to answer telephone calls.

Underwood continued as appellant's superintendent at Bloomington until March, 1922, about which time appellee commenced this action against appellant to recover the value of her services, which she alleges in her complaint were performed at appellant's instance and request, and were of the reasonable value of $15 per week. Prior to the commencement of this action, appellee, at no time, made any demand upon appellant that she be paid for services rendered by her. The only suggestion ever made by appellee to appellant as to any services performed by her was in a letter addressed to appellant a few days before this action was begun, in which letter she stated that “ever since you have been in business in Bloomington, I have answered the telephone for your service,” and “I think I should be paid for my service.”

Appellant answered the complaint by denial and plea of payment. A reply in denial to plea of payment closed the issues. On a trial of the cause, the facts, as above stated, were established by the evidence, and there was a verdict and judgment for $2,220.

In our view, the only question which it will be necessary to consider is the sufficiency of the evidence to sustain the verdict.

Appellee makes no contention that there was an express contract that she was to be paid for her services. Her...