McConnell's Appeal ( 1881 )

Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

The appellee claims d. in the court- below, for four years’ services as a domestic serva ,.t at four dollars per week. She admitted having been paid fr the first year, but alleged she had not been paid any portion of her wages for the last four years. She left the service of her employer, Mr. llamill, about two weeks after the death of his wife, in July 1875, and does not .appear to have made any demand upon him during his life. After his death, and nearly two years after she left his employ, this claim was presented. It further appears the appellee was a sister of Ilamill’s wife, and about the time she left had a quarrel with the decedent. Her brother, Mr. Fletcher, who was her main witness to sustain her claim, says, in his testimony: “At the time of Mrs. Hamill’s death, Eliza (the appellee) and Mr. Hamill had a quarrel — this was two weeks after she left — and never spoke to him again; he died a year after; she claimed her furniture which was there; she got some, but not all; all but two or three pieces which the arbitrator awarded to the estate.”

The auditing judge found the contract of hiring, and that the. services had been performed, upon which, the court below allowed the full amount of the appellee’s claim.

We are not disposed to disturb the finding of fact. There was considerable conflict of testimony, but a verdict for such reason would not be set aside. The report of an auditor, or the finding of an auditing judge, is entitled to equal weight. The conclusion of the learned court, however, upon the facts, is not so satisfactory.

It was held, in Gough v. Eindon, 7 Exch. 49, that “ where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made by the servant for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.” Again, in Sellen v. Norman, 4 C. & P. 80, it was said by Gazelee, J.: “ In the regular course, if the servant has left a considerable time, the presumption is, that all the wages have been paid.”

This is the well-settled rule in England. It was either overlooked by the court below, or considered to have no application here; probably the latter, as it w-^ d at bar that the rule, however firmly established in Engi.. ' " /as not in force in this country. No sufficient reason was shown in support of this view. Such platitudes, as “the spirit of our laws” and the “genius of our institutions” amount to nothing, for the reason, they are not applicable to the question we are considering. A presumption has been defined to be “ an inference as to the existence of one fact not certainly known from the existence of some other fact known or proved, founded on a previous experience of their connection.” The presumption referred to in the cases cited rests upon the known fact, that in England servants’ wages, as a general rule, are paid at stated periods, and it is entirely immaterial whether such periods are weekly, monthly or yearly, and upon the further fact that a servant rarely leaves the service of an employer, and remains away for months or years, without a settlement of some sort with his or her employer, or at- least a demand for payment. The same facts exist in this country, and there is, therefore, the same presumption. In either case it is a presumption which the law raises from a known state of facts, and a known course of dealing. It is, however, a presumption of fact merely, and liable to be rebutted.

In the case in hand there is nothing to rebut this presumption; on the contrary there is much to strengthen it. There is the conceded fact that the first year’s wages were paid. In view of this fact, it seems almost incredible that not a dollar of "wages should have been paid for the next four years. The payment for the first year created a course of dealing which it is only fair to presume continued thereafter. It is at least sufficient to put the appellee upon some proof to show why she received nothing during the second and subsequent years. Did she demand her wages, and was she refused ? This could hardly continue for four years, and not come to the knowledge of some one who could have been called as a witness, even if we admit the improbable supposition that the appellee would have worked for Mr. Ilamill during all those years in the face of a denial of her wages. Did she agree to make him her banker ? A most improbable thing, in view of the evidence produced by her of his neglect of business, heavy drinking and constant attacks of mania apotu. Then there was the fact of her connection by marriage with her employer; she was his sister-indaw, a fact not sufficient to overcome a contract relation, but pregnant with significance in view of her stale claim, made after her sister and brother-in-law were in the grave. Further, there was her quarrel with the latter, and a dispute about the furniture after his death, resulting in some sort of arbitration.

We are of opinion there was abundance in this case to raise such a presumption of payment, as to cast upon the appellee the duty of showing some,*’ rpore than the mere contract of hiring. It is always possible ., servant to show such contract, or what is equivalent, to prove Bervices for which a promise to pay will be implied. Such claims may be made and such proof produced years after the death of the employer. New persons take receipts for the payment of servants’ wages, and the proof thereof, in many cases, would be exceedingly difficult. This of itself would not be sufficient to defeat a just claim, but it is a good reason why a presumption, based upon sound principles and the known rules which guide human conduct, should be applied.

It was urged that the 21st section of the Act of 24th February 1834, which makes servants’ wages for one year a preferred claim against a decedent’s estate, is inconsistent with this presumption. We do not so regard it. The act was not intended to change the rules of evidence, or regulate the quantum of proof. It means that when a claim for wages is established, as required by law, it shall be a preferred debt to the extent of one year’s services. The claim of the appellee was improperly allowed.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made in accordance with this opinion.

Gordon, Trunkey and Green, JJ., dissent.