Caskey v. Kineavy , 1915 Pa. Super. LEXIS 152 ( 1915 )

Opinion by

Kephaet, J.,

This is an action of assumpsit brought by a sister-in-law against a brother-in-law for service as a housekeeper. The evidence shows that service of this nature was rendered and it should be paid for unless a family relationship existed or the presumption of payment prevented. Where the connection is that of brother-in-law and sister-in-law family relationship must be proven1 as a fact. The burden lies on the party who asserts it: Shumberger v. Hoy, 7 Pa. Superior Ct. 206; Shubart’s Est., Walborn’s App., 154 Pa. 230. Like all issues of fact tried by a jury the case is for their consideration, unless the evidence sustaining such relationship be of such character that but one conclusion can be reached therefrom, that is, that this relationship existed. Each case must to a great extent depend on its own facts. From the evidence here presented the court could not hold as a matter of law that the relationship existed. To say the least, the case is for the jury where the claimant’s evidence shows, as opposed to family relationship, that the service was rendered by request, that the claimant was not permitted to eat with the family at the common table, that the head of the family for years never exchanged a kindly word with her, and rarely, if ever, purchased any clothing or medical supplies for her. Such life is not compatible with our idea of the life which should surround the members of the family, so that the existence of the so-called family relationship 1 might be affirmatively determined. It represents more the life of the master and servant.

Appellant contends that even if this relationship did not exist there was a presumption of payment which would preclude this plaintiff from recovering. The law has been well settled in this state 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:” McConnell’s App., 97 Pa. 31; Houck v. Houck, 99 Pa. 552. This presumption is one of fact which may be rebutted. Part of the claim is for the time in which no compensation of any kind was paid. This was iip to' 1909 when the defendants wife, who was plaintiff’s sister, died. After her death and until the defendant remarried, the evidence shows monthly payments of $5.00. After remarriage, and for a few months before., claimant left, she received $5.00 every two weeks. Suit was brought immediately hfter the claimant left the defendant’s house. Ño demand was made of the defendant for wages for the period prior to the'wife’s death; and unless the conversations had with this defendant immediately thereafter induced the claimant to forego the demand ■and continue in the service, she would not be entitled to recover for this period, it being almost three' years before suit was instituted: McConnell’s App., supra.

■ The periodic payments as here made, monthly and -semimonthly, were sufficient to raise a presumption of payment. This presumption is in the nature of a receipt in full, which the law writes against the claimant. From the'kind of service rendered and the customary manner of paying for such service, in order to avoid frauds that are easily perpetrated, the law has wisely created this -barrier which claimants must remove by competent ■evidence. “It is a well-established rule that the wages for domestic service are presumed to be paid at stated periods, and that when a claim for such service is presented .... extending over' any great length of time; the burden is upon the claimant to rebut the presumption. It, of course, is a presumption of fact which may be rebutted by competent evidence, but until satisfactory evidence is produced the presumption prevails and the claim must” be disallowed:” Cummiskey’s Est., 224 Pa. 509. Where it is admitted that payments in certain amounts have been regularly made .'to domestic servants and accepted by them, the presumption of payment thus raised by lapse of time, fortified by actual payments, adds to the difficulties claimant' must 'Overcome. We do not wish to be understood as holding that the evidence necessary to overcome á receipt must be presented to rebut this presumption of payment; but, generally, such evidence must be presented from which the jury .might reasonably find that the amounts paid periodically to the claimant were not intended as settlement in full and should to some extent explain why the payments were made and accepted. Whether or not the evidence exists to rebut the presumption is a question for the court: Gregory’s Exrs. v. Commonwealth, 121 Pa. 611; Richards v. Walp, 221 Pa. 412. After a careful review of the testimony we are convinced that the claimant presented such evidence to the trial court, which, if believed by the jury, would warrant the finding that the presumption was overcome and would explain the lack of demand for compensation immediately after the wife’s death, as noted earlier in this opinion. The conversations between defendant and plaintiff relative to her remaining in defendant’s service, the offer to deposit a sum of money in her name and to add to it until it would reach a certain amount, and the promise made to the plaintiff when she left, to pay to her a certain sum in periods, are some of the circumstances which, with others, were submitted to the jury, from which they might find as a fact that the payments were not intended to be payments in full for the service rendered. This evidence was admitted not for the purpose of establishing an express contract with regard to. these specific amounts, but as evidence tending to show that the defendant regarded the sums paid .to the plaintiff as not being in full for her service and that he considered that she was entitled to something beyond the amounts paid. From the nature of the life which this plaintiff led at the defendant’s home, it is not to be supposed that these offers were of a charitable nature.

Complaint as to the judge’s charge is made in several of the assignments of error. While there are some misstatements of the evidence the misstatements are harmless errors, Had the appellant deemed any of much. weight, he should have then directed the court’s attention thereto. As to the reference to the time the first conversation took place between the parties hereto, this the court endeavored to correct. We feel, however, that the charge as a whole was fair and no serious errors were made by the learned president judge such as would have prejudiced appellant’s rights. Had appellant desired special instruction covering any phase of the law involved, he should have asked for it; and if the court failed to instruct as completely on the questions presented as appellant thought necessary, he had abundant opportunity to have the court complete its instructions.

The assignments of error are overruled and the judgment is affirmed at the cost of the appellant.