Houck's Executors v. Houck , 99 Pa. 552 ( 1882 )

Mr. Justice Paxson

delivered the opinion of the court, February 27th 1882.

There is no merit in this case ; yet if the law is with the plaintiff's below, the judgment must stand. It was a suit brought against the estate of the wife’s father, to recover compensation for the services of the wife for a period of about one year and three months. Annie Houck, one of the plaintiffs, resided with her father as a member of his family, and assisted in the work of the house. She had two children prior to her present marriage, who were also a part of the family, and, as the evidence shows, supported mainly by her father. She was married to Jacob Houck, plaintiff, in October 1878. At the time of said marriage, and for some time prior thereto, the said J acob Houck lived with her father as a farm hand at the wages of $10 per month. This arrangement continued for about one year and three months after the marriage, and until the death of old Mr. Houck’s wife, when the plaintiffs moved away. During this period the plaintiff, Jacob Houck, received his wages regularly, and no part of the present claim is for his serT vices. The plaintiff, Annie Houck, continued as maid of all work, and particular stress is laid upon the fact, that she acted as nurse to her mother, who was then, and had been for many years, afflicted with a cancer, of which she died after much suffering, in January 1880. There is no doubt the services of the daughter during this period were efficient and faithful, and to some extent, of an unpleasant nature to perform. They were no more, however, than every daughter living with a mother is in affection and duty bound to perform, and were not such as the law will imply a promise to compensate. Indeed, it was conceded by the court below, and by the counsel upon the argument; that the wife could not recover, as there was no evidence of any contract to pay for the services. It was urged, however, that after the marriage the services of the wife belonged to her husband, and that, inasmuch as he was a plaintiff in the action, he was entitled to recover. No authority was cited in support of this proposition, and I apprehend none can be found. The suit was brought, as before observed, by the husband and wife for the services of the latter. The learned judge ruled that the joinder of the wife was surplusage, and that the husband could recover as if this suit had been brought by him alone. We do not attach much weight to the fact that the wife is a co-plaintiff. That would be sticking in the bark. We rule the case upon the broader principle that as the wife, in the absence of an express contract, cannot recover, the husband has no higher right. When the plaintiffs were married, the wife was engaged in performing services for her parents, which the law raised no implied promise to compensate. He then had his option to dissolve that relation, or insist upon an express contract. He did neither. He continued to work on the farm as before, at his accustomed wages, and the wife continued in the performance of her services to her parents. There was no change of any kind. The elder Houck had no notice, that upon the .day after the marriage, his daughter’s services to her sick mother were no longer rendered from a sense of filial duty, and in consideration of past and present favors, but as a matter of business, with a debtor and creditor account. Nor was any such notice ever given him. So far as the evidence shows, there was no claim upon him for compensation, nor upon his estate until some time after his death. If, therefore, the husband permitted his wife, after marriage, to continue in the service of her father precisely as before, he is as much precluded from recovering compensation as the wife would be.

Aside from this, if we disregard the relation of parent and child, and substitute that of master and servant, the recent case of McConnell’s Appeal, 1 Out. 31, is directly in the way of the plaintiffs. It was there held that “ In this country (as in England) where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that tbe service was performed on tlie footing that no payment was to be made.”

This, as was stated in tbe case cited, is a presumption of fact, and liable to be rebutted. There was not a particle of evidence in this case, to rebut this presumption. Old Mr. Houck was in circumstances that enabled liim to pay ; the fact was conceded tliat the husband had been regularly paid bis wages as a farm hand up to tlie time they left. Yet, as before stated, no demand appears to have been made for the services of the wife, either during the period of such service,' at the time they went away, or afterwards and during the lifetime of Mr. Ilonck, the elder. So far from the presumption referred to having been rebutted, the evidence leaves the strong impression that the claim was an afterthought, and an attempt, after the death of the defendants’ testator, to gain a larger share of his estate, justifies the remark of Lowihk, J., in Lynn v. Lynn, 5 Casey 369 : “ Here is another claim that ought to be charged to the account of family relationship . . . Causes of this character are among the most odious that courts have to deal with.”

The claim in this case is particularly odious, in view of the peculiar circumstances under which tlie wife and her two children were cared for and sheltered in her father’s house.

All of the defendant’s points should have been affirmed.

Judgment reversed.