Schrimpf v. Settegast

Citations

• 36 Tex. 296

Syllabus

<p>1. As a general rule, whenever services have heen rendered to another, a contract of hiring and an obligation to pay will be presumed. Such a presumption, however, does not obtain between parent and child, or between near relatives; and in other cases it may be repelled by proof • of facts or circumstances showing that neither party contemplated such a contract or obligation, as when a person, influenced by motives of great friendship, lives with another and renders services, or when the services were rendered in expectancy of a legacy, or by a person who had been received into the family of another through motives of charity or humanity.</p> <p>2. The weight of authority establishes the doctrine that when a person, through kindness or charity, has received an orphan child into his family, and treats it as a member of his family, he stands towards it in loco parentis so long as it remains in his family ; and he is bound for the maintenance, care, and education of such child, and entitled to its services without other compensation, unless he has otherwise stipulated. See the opinion for a review of leading American cases on this question.</p> <p>3. If, however, the party who has thus assumed the care of an orphan child fails to provide properly for its maintenance and education, a liability for its services may result, enforceable by the child on attaining .its majority ; and in such cases the facts out of which such a liability may arise are for the determination of the jury, under proper instructions from the court trying the case.</p> <p>4. It was error to charge the jury in effect that the defendant was liable to the plaintiffs for the value of their services rendered during their minority, when the proof showed that he had found them orphans of tender years, sick and friendless, and had taken them into his family without having them bound to him under Article 3927, Paschal’s Digest. The defendant’s liability, and the extent of it, depended upon the care and e