Inness v. Meyer , 93 Neb. 43 ( 1913 )

Barnes, J.

This is an appeal from a judgment of the district court for Wheeler county. It appears that the plaintiff and defendant entered into an agreement by which plaintiff’s son, a boy about 15 years of age, who was living with and being supported by his father, was to herd cattle for the defendant, and defendant agreed to pay plaintiff for the services of his son $18 a month. The services- were performed, as claimed by the plaintiff, for a period of four months and fourteen days. On defendant’s refusal to pay for the services in question, plaintiff brought an action in justice court of Wheeler county, and recovered a judgment against the defendant for the sum of $81.69. The-defendant appealed to the district court, and on a trial, without the intervention of a jury, plaintiff again had judgment for $80.33. To reverse that judgment the defendant has prosecuted this appeal.

Two grounds for a reversal are assigned, which may be stated as follows: First. The defendant was not the real party in interest, and had not the legal capacity to maintain this action. Second. The judgment is not sustained by sufficient evidence..

In support of defendant’s first assignment, it is argued that plaintiff’s minor son was the real party in interest, and the action could only be maintained by him through or by his next friend. The testimony discloses that the plaintiff had not emancipated his son, but, on the contrary, claimed his wages; that the contract with defendant was made by plaintiff, and not by the minor son, who made no claim for his services. In such a case, it cannot be said that the minor son of the plaintiff was the real party in interest. As a general rule, the right of action for the services or earnings of an unemancipated minor is in the parent. This is invariably true where the contract of employment was made by the parent. 29 Cyc. .1631. As shown by the evidence in this case, plaintiff was the real party in interest, was the proper party to bring this action, and defendant’s contention cannot be sustained.

In support of the second assignment of error, it is argued that the evidence is insufficient to support the judgment, for the reason that the plaintiff was entitled to receive compensation at the rate of $18 a month, counting 30 days as a month, instead of 26 days, as claimed by the plaintiff. The plaintiff testified that it was the custom among cattlemen to pay for such services at the rate of 26 days, instead of 30 days, a month; that this was the understanding between plaintiff and defendant at the time the services in question were contracted for; that on a former occasion defendant had paid plaintiff for like services at the rate of 26 days a month, and this testimony was not denied by the plaintiff. The defendant now insists, however, that he was entitled to receive the services of the plaintiff’s son for full 30 days for each month during which he was employed. That question, however, was submitted to the court upon competent evidence, and, even if it was somewhat conflicting, the finding of the trial court is entitled to the same weight as the verdict of a jury, and such finding and judgment of the trial court will not be disturbed on appeal.

For the foregoing reasons, the judgment of the district court is

Affirmed.