Gage v. Gage

• Decision Date: 21 February 1914
• Citation: 138 P. 886,78 Wash. 262
• Court: Washington Supreme Court
• Parties: GAGE v. GAGE.

138 P. 886

78 Wash. 262

GAGE v. GAGE.

Supreme Court of Washington

February 21, 1914

Department 2. Appeal from Superior Court, Spokane County.

Action by Eva Gage and her husband, who was later dismissed from the case, against A. J. Gage. Judgment for plaintiff first named and defendant appeals. Affirmed.

Danson, Williams & Danson and Geo. D. Lantz, all of Spokane, for appellant.

Lawrence Jack, of Spokane, for respondent.

PARKER J.

The plaintiff seeks recovery of compensation from the defendant for services which she claimed she rendered to him as housekeeper. Verdict and judgment were rendered in favor of the plaintiff, from which the defendant has appealed.

It is first contended that the evidence does not sustain the verdict and judgment, in that it does not warrant the conclusion that respondent, being a married woman, has the right to separately sue for the compensation she seeks, as her separate property. The facts, which a review of the evidence convinces us the jury was warranted in regarding as proven thereby, may be summarized as follows: Respondent is married, and has lived with her husband at all times since their marriage, which occurred some ten years prior to the commencement of this action, and long before the occurring of the events here involved. Some two years prior to the commencement of this action, she was employed by appellant as housekeeper, but without any specific agreement as to the amount of her compensation. The employment agreement was made by appellant directly with her. He paid her sums differing in amount from time to time, but without regularity as to time of payment. During a considerable portion of her married life, before her employment by appellant, she had been employed as a dressmaker and in dry goods stores, receiving her own wages and treating the same as her separate property, in compliance with an agreement existing between herself and husband. She had been so employed in a dry goods store for a considerable period at the time she was employed by appellant. He knew that she was accustomed to work for wages and receiving the same as her own. He is a brother of her husband. Both she and her husband testified that they had an agreement that she should receive and treat all of her personal earnings as her separate property. Her husband was a record party plaintiff to this action up to the time of the trial, but the trial proceeded, and evidence on her behalf was introduced upon the theory that she was claiming compensation due her from appellant as her separate property the testimony of her husband going to support that contention. The evidence tending to so show was not objected to by counsel for appellant upon the ground that it was not within the issues under the pleadings, though such issue was not, in fact, presented in the pleadings. The issues having, without objection, been thus somewhat changed from those raised in the formal pleadings, after the close of the evidence produced in behalf of the respondent, her husband was dismissed from the case, on motion of her attorney. The trial judge then remarked: 'The issues, as I now understand, are clear cut as to whether or not a contract was made between Mrs. Gage and the defendant in this case, and whether or not it was separate property.' Counsel for appellant proceeded with the introduction of evidence upon this theory.

In view of the issues having assumed this form without objection, and the testimony of both respondent and her husband showing that an agreement existed between them that her personal earnings should be her separate property, which testimony was undisputed, it seems to us that it might well be argued that the court could have decided, as a matter of law, that whatever was due to respondent from appellant as her personal earnings was her separate property. That such an agreement may be lawfully made orally between husband and wife has been held by this court in Yake v. Pugh, 13 Wash. 78, 42 P. 528, 52 Am. St. Rep. 17, and Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 P. 1088, both of which cases involved personal earnings of the wife and the question of the same becoming her separate property even as against the rights of creditors. It is worthy of note that there are no rights of creditors, either community or separate, here involved, which would seem to place re...