Jerome v. Wood

• Decision Date: 04 March 1907
• Parties: JEROME v. WOOD.
• Court: Colorado Supreme Court

88 P. 1067

39 Colo. 197

JEROME v. WOOD.

Supreme Court of Colorado

March 4, 1907

Appeal from Arapahoe County Court; Albert S. Frost, Judge.

Action by Sarah Wood against Frank Jerome. From a county court judgment in favor of plaintiff on appeal from a justice of the peace, defendant appeals. Reversed.

T. H Hood, for appellant.

J. R Alphin, for appellee.

MAXWELL, J.

This case having originated in a justice court, the issues must be found in the evidence. From a judgment of the county court in favor of plaintiff below, appellee here, is this appeal.

The facts are: In July, 1900, plaintiff entered the service of defendant as a domestic servant. Defendant's wife was at that time, and for years had been, an invalid. At the time plaintiff entered the service of defendant she knew the condition of defendant's wife, and that she would be required to render such services to defendant's wife as might be necessary in addition to her services as a domestic servant. At the time of the employment $20 per month were the wages agreed upon. About September 1, 1900, a change in the treatment prescribed by the doctor in attendance upon defendant's wife increased the services plaintiff rendered defendant's wife thereafter. About this time plaintiff's wages were raised to $23 per month. Plaintiff continued in the service until February 22, 1901. At the end of each and every month plaintiff was paid her wages at the above rates, and on February 21st, upon a settlement had between plaintiff and defendant, plaintiff was paid the amount found to be due at that date. At no time during the employment, and not until February, 1902, a year thereafter did plaintiff demand of defendant extra compensation for the extra services claimed to have been rendered, although plaintiff met defendant a number of times after she had left his employ. The above facts are undisputed. Plaintiff testified that after the treatment had been changed and her work increased thereby in September, 1901, and subsequent thereto, she complained to defendant that her work had been increased, and that she intended to leave her position, to which defendant replied that, if she would remain, he would 'make it all right, * * * that he would do well by me, or something to that effect.' The defendant denied having agreed to pay plaintiff extra compensation, denied the above conversations or anything approaching thereto, and testified that plaintiff never at any time complained to him about the position being a hard one.

To sustain the judgment, counsel for appellee relies upon two propositions: (1) 'All services rendered by an employé during the period for which he is employed of a nature similar to his regular duties are presumed to be paid for by his salary, and to recover extra pay the servant must overcome this presumption by showing an express agreement therefor.' 20 A. & E. Enc. Law (2d Ed.) 19; Wood's Master & Servant (2d Ed.) § 86. (2) 'A servant employed for a term in a particular service has a right to compensation for services rendered on request outside of the sphere of his employment, although there is no express agreement to pay therefor.' 20 A. & E. Enc. Law (2d Ed.) p. 19; Wood's Master & Servant, §§ 86, 89. Under the undisputed testimony we think this case falls within the first principle stated, as the appellee testified that at the time of her employment she knew the invalid condition of appellant's wife, and that she knew she would be required to do whatever the wife's necessities might demand. Otherwise stated, according to her own testimony, she was employed as a domestic servant and as an attendant upon the wife to the extent of the necessities of the case, and her testimony shows conclusively that she rendered no services which were outside of the sphere of such employment.

The question remains: Did appellee's testimony bring her case within the rule that an employé who seeks to recover extra compensation for services rendered which were within the sphere of her employment must overcome the presumption of law that such services were paid by her wages by proof of an express agreement to pay therefor?...