Wyley v. Bull

• Decision Date: 09 March 1889
• Citation: 41 Kan. 206,20 P. 855
• Parties: KENLEY B. WYLEY v. JOHN F. BULL
• Court: Kansas Supreme Court

20 P. 855

41 Kan. 206

KENLEY B. WYLEY v. JOHN F. BULL

Supreme Court of Kansas

March 9, 1889

Error from Atchison District Court.

THE opinion states the nature of the action, and the material facts. Trial at the January term, 1885, and judgment for defendant Bull, for costs taxed at $ 187.10. The plaintiff Wyley brings the case here.

Judgment affirmed.

W. D Webb, for plaintiff in error.

Hudson & Tufts, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Atchison county by Kenley B. Wyley against John F. Bull, to recover for work and labor alleged to have been performed by the plaintiff for the defendant from February 1, 1875, up to February 3, 1882. The case was tried before the court and a jury, and the court instructed the jury, in effect, that they should find for the defendant, and they did so, and judgment was rendered upon their verdict in favor of the defendant and against the plaintiff for costs; and to obtain a reversal of this judgment, the plaintiff, as plaintiff in error, brings the case to this court.

It appears from the evidence in this case substantially as follows: On February 1, 1875, the plaintiff, who then lacked just two days of being twelve years old, together with his two brothers and three sisters, all minors, resided with their uncle and guardian, George Tedrick, of Brown county upon whom they all depended for care, sustenance, and support. Their father and mother were dead. About that time the plaintiff, under an arrangement made between his uncle and guardian, Tedrick, and the defendant, went to live with the defendant as one of his family, doing such work for the defendant as he reasonably could, and the defendant was to board him, clothe him, and send him to school, etc., as though he were his own son. This arrangement was to continue until the plaintiff should arrive at the age of twenty-one years. Nothing was said at the time nor at any other time between the defendant and the plaintiff's uncle, or between the defendant and the plaintiff, with respect to the payment of wages or the payment for the boarding, clothing, schooling, etc., to be furnished by the defendant, and no account was ever kept, or to be kept by any one of the parties with reference to wages, or with reference to the boarding, clothing, schooling, etc., or with reference to anything else. The plaintiff continued to reside with the defendant as one of his family up to about February 3, 1882, when he and the defendant had a quarrel and a fight, and the plaintiff left. During the time while the plaintiff resided with the defendant, he lived with him in the same manner as though he had been a son of the defendant. The defendant and his wife treated him as a son, and he called the defendant "pa," and the defendant's wife "ma," and they called him their boy. They had no children of their own. The plaintiff was treated well, furnished with good food, clothing and lodging, sent regularly to school, and all at the defendant's expense; and the defendant occasionally gave him holidays, permitted him to go to shows and other places of amusement, and furnished him with spending-money. On the other side, it is admitted that the plaintiff was a good boy, and worked well for the defendant. In fact, the relationship existing between the plaintiff and the defendant and his wife was generally pleasant and satisfactory, and was almost precisely the same as though the plaintiff had in fact been their son. After the plaintiff became twenty-one years of age, and on September 12, 1884, he commenced this action.

We are inclined to think that the decision of the court below is correct. Where a person lives with a relative as one of the relative's family, neither has a cause of action against the other for compensation, for wages on the one side, or for boarding, lodging, etc., on the other side, or for anything else furnished by the one to the other as a member of the family, except where an express contract is shown to exist between the parties requiring that one or the other shall have compensation. (Ayres v. Hull, 5 Kan. 419; Greenwell v. Greenwell, 28 id. 675; Ensey v. Hines, 30 id. 704; Shane v. Smith 37 id. 55; 26 Cent. L. J., 51-55, and the numerous cases there cited.) And this rule applies with equal force and to an equal extent as between strangers living together as one family, except as we shall hereafter state. (Windland v. Deeds, 44 Iowa 98; Smith v. Johnson, 45 id. 308; Ryan v. Lynch, 9 Mo.App. 18; Hartman's Appeal, 3 Grant's Cases, 271; Livingston v. Ackeston, 5 Cow. 531; Griffin v. Potter, 14 Wend. 209; Mountain v. Fisher, 22 Wis. 93; Cooper v. Cooper , Mass., 17 N.E. 892; 26 Cent....