105 Wash. 525 | Wash. | 1919
In this action the appellant sought to recover from the respondent for personal services rendered, as she alleges, under an oral contract of employment. To the complaint, which embodied the appellant’s claims, the respondent answered by a general denial. On the issues as thus framed, a trial was
The complaint and the evidence disclosed that the contract on which recovery was sought was entered into while the appellant was a married woman living with her husband, that it was performed while coverture existed, and that the action was brought after the death of the husband, by the appellant suing in her own right. Based on the conclusion that the presumption arising from the facts recited was that the obligation sued upon was a community obligation, and the conclusion that other evidence in the record did not overcome the presumption, the court held that the appellant was not the real party in interest, and hence could not maintain the action.
We think the court erred in its conclusion, for at least two reasons. In the first place, there was no issue upon the appellant’s right to maintain the action. The complaint itself disclosed all of the facts thought to deny a right of recovery in the appellant, yet there was no motion or demurrer to the complaint, nor was the objection set forth in the answer. The case was twice tried to a jury, in each of which trials the jury returned a verdict for the appellant, yet at no time during the progress of either trial, prior to the return of the last verdict, did the respondent make the objection that the appellant could not maintain the action. This was a waiver of the objection. It must be remembered that this is not an objection fatal under all circumstances. Under our statute, a wife may receive the wages for her personal labor and maintain an
In the second place, we think there is evidence in the record which, in the absence of an issue on the question, is sufficient to overcome the presumption of the community nature of the obligation sued upon. The evidence need not be detailed at length. Briefly, the respondent owned a pumping plant and was engaged in supplying the city of Pasco and the surrounding territory with water. The appellant’s husband was employed to operate the plant. After worldng a short time, he complained to the company of the excessive hours he was required to be engaged and the meagerness of the wages paid for the services required. As a relief he proposed that the respondent employ both himself and his wife jointly at an increased wage. The
The respondent argues that there is no evidence to support the verdict, and that the judgment of the court can be sustained upon this ground, even if erroneous on the ground assigned. It must be confessed that the contract as set forth in the complaint does present peculiar features, so out of the ordinary, indeed, as challenge the trier of the fact to scrutinize closely the evidence by which it is sought to be supported. But we agree with the trial court that it was supported by substantial evidence. The case is not, therefore, one where the court may direct a judgment in disregard of the verdict of the jury.
Main, Mount, Parker, and Holcomb, JJ., concur.