Wright's Adm'x v. Donnell

• Decision Date: 01 January 1870
• Parties: WRIGHT'S ADMINISTRATRIX v. THOMAS DONNELL.
• Court: Texas Supreme Court

34 Tex. 291

WRIGHT'S ADMINISTRATRIX

v.THOMAS DONNELL.

Supreme Court of Texas.

1870.

1. Vindictive damages are not recoverable from the estate of a deceased trespasser, no matter how aggravated the trespass may have been.

2. A verdict will not be disturbed because the court below erroneously instructed the jury that they might allow exemplary damages, when it is apparent that compensatory damages only were given by the jury. Fitzpatrick v. Blocker, 23 Tex. 552, cited by the court.

3. Verdicts will not be disturbed because this court regards the evidence in the record as weak and contradictory, nor because it does not seem entitled to the weight accorded to it by the jury.

4. Objections to the charge of the court below to the jury should be taken in that court at the trial, and the proper charge be then asked.

5. The principle that no obligation will be implied to pay for services rendered by a son to a parent, a nephew to an uncle, etc., does not obtain as between a son-in-law and his father-in-law.

6. In a suit for the value of work, services, etc., done and rendered at various times from 1858 to 1866, verdict and judgment “in coin” were rendered for the plaintiff. Held, that this was erroneous; but inasmuch as the defendant in error consents to the correction of the judgment in this respect, it is ordered to be so reformed, and to be affirmed.

APPEAL from Colorado. Tried below before the Hon. T. C. Barden.

A clear though compendious statement of the most important features and facts of this case will be found in the opinion of the court.

The items constituting the account of Donnell, the plaintiff, covered the series of years from 1858 down to 1866, both those years inclusive. They were of various kinds, but principally for building cabins, cribs, and shops; work on dwelling house, saw-mill, and plantation; wages as manager and overseer, and value of plow animals furnished, aggregating $9,525.76.

The bill claimed against the plaintiff by the defendant in reconvention, was for the board of Donnell and his wife during the same period, for services of negro servants belonging to Wright and used by Donnell, and for money paid to and for Donnell by Wright, amounting to a sum total of $2,950.

The plaintiff obtained a verdict and recovered judgment for $7,610.10 in coin.

The evidence in the record covers upwards of eighty pages, but in view of the rulings of this court, there is no occasion to undertake a review of it here.

The defendant moved for a new trial, which was refused, and she appealed.

The arguments of the counsel are able and exhaustive, but space can be afforded for such portions only as seem of the most practical bearing and use.

R. V. Cook, for the appellant. In the charges asked for by the plaintiff, and delivered by the district judge, it will be observed that he utterly abandons the express contract set up in his petition, and seeks to recover as upon an implied contract; and we find him obtaining a charge from the court to the effect that if he performed works and services for Wright, which were of value to him, if there was privity between the parties, the law would raise an implied obligation upon the part of Wright to make compensation. This, as a general principle of law, considered with reference to transactions between strangers, will not be called in question. But the appellant here enters her solemn protest against its applicability to the state of facts now before the court. The law as between persons standing related by consanguinity or affinity, does not raise any such implied promise. Dye v. Kerr, 15 Barb. 444. The court will bear in mind that Mrs. Donnell, wife of the appellee, was the daughter and one of the immediate heirs of Dr. James Wright, who, according to the testimony of one of the witnesses, “was a weak and feeble old man.”

Now it is contended for the appellant, that by reason of this relationship subsisting between Wright and Donnell, and in consideration of the further fact that appellee and his wife were inmates of Wright's family during the entire period within which the alleged services were rendered, the law will not raise an implied promise upon the part of Wright to pay his son-in-law. In other words, the law failing to raise any such promise as it would do if the parties were strangers, it devolved upon the plaintiff in the court below to show affirmatively that he was hired, and that Wright did actually promise to remunerate him for his services. The onus probandi rested upon the plaintiff. At this point we invoke the authority of Chief Justice Parsons:

“A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger and where it is rendered to near relations. In general, where-ever service is rendered and received, a contract of hiring or an obligation to pay, will be presumed. But it is said not to be so when the service is rendered to the parent or uncle, or other near relation of the party, on the ground that the law regards such services as acts of gratuitous kindness and affection.” Dye v. Kerr, 15 Barb. 444; Davies v. Davies, 9 Car. & P.; Par. Con. 44, fourth edition.

It was for the recognition of this principle that the appellant strove in the court below. And a charge, embodying the principle, was asked and refused by the district judge.

Nor can it be successfully shown that the refusal of the district judge to give the charge was justified upon the ground that the principle contended for is not sanctioned by the authorities. This court is respectfully referred to the following cases determined by courts of the very highest respectability both in England and America. Dye v. Kerr, 15 Barb. 445;Defrance v. Austin, 9 Penn. 309, Barr;Andrus v. Foster, 17 Vt. 556;Fitch v. Peckham, 16 Vt. 150;Guild v. Guild, 15 Pick. 130; Alfred v. Fitzjames, 3 Esp. 3; Weir v. Weir, 3 B. Mon. 647; Osborn v. Governor of Guy's Hospital, 2 Strange, 728; Le Sage v. Coussmaker, 1 Esp. 188; Little v. Dawson, 4 Dall. 111; Lee v. Lee, 6 Gill and J. 309; Patterson v. Patterson, 13 Johns. 379; Little v. Dawson, 4 Binn. 111; Martin v. Wright's Administrator, 13 Wend. 460; Davis v. Davis, 9 Car. & P. 87; 2 Par. Con. 46, and cases there cited.

While the general principle contended for by the learned counsel for the appellee, that the law per se will raise and sustain an implied agreement upon the part of the party sought to be charged to pay for work and services rendered by a stranger for the benefit of himself or his property, is admitted to be correct, the point of divergence is this: that as between parties who are near relatives the law refuses to raise such a presumption; and that it is incumbent upon the plaintiff in a suit of this character, not to rest his case upon the mere showing that the service had been rendered, but he is bound to go a step further, and to show affirmatively that the services were done and performed “under such circumstances as to justify an expectation on the part of both that pecuniary compensation would be required.” The onus probandi is imperatively upon the plaintiff. See the case of Andrus v. Foster, 17 Vt. 556; also King v. Sow, 1 Barn. & Ald. 179, where the court say: “Where parties are not related, it may be fairly presumed from a continuance in the service that the terms on which they continue were the same as during the preceding year. But where the relation of parent and child subsists, the ground for that presumption fails.” And in the case of Dye and Wife v. Kerr et al. 15 Barb. 445, the court say: “The books are full of cases to show that under such circumstances, the law will not imply a promise to pay for services thus rendered, or permit a recovery, unless an express promise is shown, or something to prove that such was the expectation on both sides.” And the very question was then before the court that we are now discussing. And further on in the same opinion, the court say: “That during the whole time the services were being rendered, the family relation, which is always, in the absence of any express agreement or promise to pay, regarded as a bar to any right of recovery, existed between the testator and claimant.”

And in Defrance v. Austin, 9 Penn. 309 (Barr), the court say, in quoting the English authorities: “That the performance of labor generally by one for another raises an implied assumpsit that he will be compensated; but this implication may be rebutted by proof of circumstances showing that such a relation existed between the parties as repels the idea of contract. Indeed, the plaintiff in error confidently rests the whole question on the authority of the two cases last cited. And the attention of the court is especially invited to their consideration.”

There being no evidence, then, of any express contract, and the law refusing, under the circumstances, to raise an implied one, the plaintiff below equally failed to elicit any facts to establish, circumstantially, that Wright was privy to the work done and performed by Donnell, or that the latter was in expectation of pecuniary compensation at the time the services are alleged to have been performed. The onus was upon him.

In James v. O'Driscoll, 2 Bay, 101, the court well say: “That all contracts must be good or bad in their original creation, and must not depend on subsequent contingencies.” To the point that works and services originally gratuitous cannot be enforced as a subsequent pecuniary demand, the court is referred to these cases: James v. O'Driscoll, 2 Bay, 101;Bartholomew v. Jackson, 20 Johns. 28;Hurt v. Norton, 1 McCord, 22;Newell v. Keith, 11 Vt. 214.

I cannot forbear quoting the syllabus of Bartholomew v. Jackson, as it expresses with great perspicuity the doctrine contended for: “Labor and services voluntarily done by one for another without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, affords no...