Medlock v. Isaacs

139 S.W. 948, 144 Ky. 787, 1911 Ky. LEXIS 723

• Court: Court of Appeals of Kentucky
• Decided: October 13, 1911
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Hobson—

Affirming.

Mattie Medlock brought this suit against William Isaacs alleging in her petition that she had boarded, clothed and taken care of his infant child from May 1, 1904, to February 28, 1909, at his request; that he had agreed to pay her a reasonable compensation for her services, and that $2.50 a week was a reasonable compensation. He filed an answer controverting the allegations of the petition. There was a trial of the case which resulted in the jury failing to agree. At the next term of the court, she amended her petition, and struck out so much of it as claimed compensation for board and washing for the child, and alleged that the defendant agreed to pay her for her services in keeping, caring for and waiting on the child, and that he also promised to pay the girl hire to enable her to give her time and attention to the child. Isaacs filed an answer controverting the allegations of the amended petition, and pleaded that Mattie Medlock resided with her father, John Medlock; that all the services she rendered were rendered as a member of John Medlock’s family and for him; that he had a contract with John Medlock to take care of the child, and that he had paid John Medlock for th-e services, and that he had no contract with Mattie Medlock. The case was tried again before a jury who returned a verdict for the defendant. Mattie Medlock appeals.

The proof on the trial showed that William Isaacs was the son-in-law of John Medlock, his wife being the sister of Mattie Medlock, and that they lived just across the road from her father and his family. Mattie Medlock living with her father. Mrs. Isaacs died in April, 1904, leaving a daughter ten months old. At request of Mrs. Medlock and, her husband, Isaacs, after the burial of his wife, went with his child to their house and the child remained there until after Isaacs married again in the year 1909. Mattie Medlock was living as a member^ of her father’s family and she took charge of the child. She testified that Isaacs made a contract with her as set out in her petition, and her mother gave evidence sustaining her. On the other hand, Isaacs testified that he had made no such contract; that he did make a contract of that sort with her father, the head of the family, and that he had paid John Medlock for the services, producing checks showing that he had paid John Medlock in one way or another between $500 and $600. The evidence was conflicting and we cannot say the verdict of the jury is against the weight of the evidence when all the circumstances are considered.

It is insisted that the court erred in allowing the attorney for the defendant to cross-examine the plaintiff as to why she had changed her petition and struck out the claim for board and washing; but we do not see that there was any abuse of discretion in this matter, and the extent to which a cross-examination should be allowed, is a matter on which the trial court has a wide discretion. It is also insisted that the court erred in refusing to submit to the jury the question whether Isaacs agreed to pay the girl hire to enable the plaintiff to give her time and attention to the child. The plaintiff alleged that she had spent $50 in this way. But the contract as to the girl hire was simply a part of the contract to take care of the child. The jury found under the instructions of the court that Isaacs did not make the contract with Mattie Medlock, and if the matter of the girl hire had been included in the instruction of the court, it could have had no effect on the result as the verdict of the jury under the instructions which the court, gave, was a finding that there was no contract made by Isaacs with Mattie Med-lock.

It is also insisted that the court erred in allowing Isaacs to read to the jury certain letters that John Med-lock had written him. It was proper for Isaacs to show that he had a contract with the head of the family to take care of his child, and that he had paid the head of the familv for the services for which he was sued by Mattie Medlock. The payments were made from time to time and the circumstances were such as to render it hard to believe that Mattie Medlock did not know that Isaacs was paying the money to her father, and looking to bfm as the person who was taking care of his child. The check showed that he had paid the money as he testified he had done, and the letters wMch he had received from John Medlock confirmed his testimony'. The child had been kept in the family and taken' care of. Isaacs was in duty bound to take care of his child and provide for her. The fact that he was providing for her and paying the head of the family for what she received, without objection from Mattie Medlock, was a circumstance to he considered by the jury on tbe question whether he had made the contract which Mattie Med-lock claimed under, especially when the child had remained there for nearly five years and no claim was legally asserted against him until after he married a second time. The letters and cheeks stand on same plane.

Judgment affirmed.