Abdullah v. Abdullah

NOURSE, J.

This is an appeal by the defendant from a judgment against him in favor of plaintiff, who is a minor and sues by his guardian

ad litem.

The plaintiff is the nephew of the defendant and this action was brought to recover $572, money had and received by the defendant, together with $4,250, the alleged reasonable value of services as a masseur, rendered by the plaintiff over a period of three and a half years at a turkish bath establishment conducted by defendant, which services were rendered at the special instance and request of the defendant.

Defendant answered, denying the indebtedness for money had and received, and denying that the reasonable value of the services rendered was the sum alleged by plaintiff, and alleging that plaintiff had been fully paid for all services rendered for defendant. The answer was later amended so as to include an allegation that at all the times mentioned in the complaint the plaintiff was a member of the defendant’s family, and the defendant bore to him the relation of a parent.

The trial court found “that it is not true that at all times mentioned in plaintiff’s complaint, or at any time at all, plaintiff was a member of defendant’s family, and it is not true that defendant maintained plaintiff at all or any times according to his circumstances or in any other manner, and that it is not true that defendant was in the place of a parent toward plaintiff, but the court finds that the defendant never at any time exercised any control whatsoever over the plaintiff or stood in any relation whatsoever to this plaintiff except as master and servant, and that it is not true that defendant did not make an agreement to pay plaintiff for his services, but the court finds it to be true that defendant did agree to pay plaintiff for his services.”

[117]

Appellant contends that, under the evidence, the court should have found that the defendant was

in loco parentis

to the plaintiff, and under such a state of facts was entitled to receive without compensation the services of plaintiff and also the money earned by plaintiff by his services to others. The testimony upon this question is susceptible of conflicting inferences; and under such circumstances, the findings of the trial court are conclusive upon us. The record contains testimony from which the findings just quoted may reasonably be made, for it appears that the plaintiff was living in Asia Minor with his parents when the defendant sent him money to come to California. When plaintiff reached Los Angeles defendant paid for his room and board for about a week until he went to work at the Lankershim Hotel. After that, plaintiff was given his meals at the hotel, and also received a salary of forty dollars a month. The check for his salary he regularly gave to the defendant, who told him he would save his money for him as he could not keep money himself, being a minor. Defendant also told plaintiff that he would secure a bank-book for him, and later showed him a bank-book, which plaintiff did not examine. During the eight months that plaintiff worked at the hotel he gave all his salary checks to the defendant and the defendant paid plaintiff’s room rent, which was six dollars a month. Defendant also brought plaintiff one fifteen dollar suit of clothes and one four dollar pair of shoes. He gave plaintiff no money during this time, and after eight months he told him to come and work for him at his turkish bath establishment at the Athletic Club, in Los Angeles. Plaintiff testified that the defendant said to him in connection with this employment: “I have four or five others working for me. I will make a lot of money and you will malee the same thing as the others are making. Any. thing the others make they get fifty per cent of. They are making twenty-five dollars or thirty dollars a week, or more. I mean fifty per cent of the money they take in. If they take in ten dollars they get five dollars of it.” Plaintiff testified that he went to work for the defendant on that understanding.