Rose v. Otis

• Decision Date: 31 October 1892
• Citation: 18 Colo. 59,31 P. 493
• Parties: ROSE v. OTIS.
• Court: Colorado Supreme Court

31 P. 493

18 Colo. 59

ROSE v. OTIS.

Supreme Court of Colorado

October 31, 1892

Appeal from district court, Arapahoe county.

Action by E. A. Otis against Elizabeth Rose to recover compensation for work performed. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Action to recover compensation for work and labor. Otis, the plaintiff below, brought this action originally against James Rose and Elizabeth Rose, husband and wife, as joint defendants, to recover for work and labor performed by him as a gardener and general laborer for the defendants and at their request. The complaint was based upon a quantum meruit for such services from December 1, 1882, to June 1, 1887,-4 1/2 years. By an amended complaint James Rose was dismissed as a party defendant, and the action was continued against Elizabeth Rose as sole defendant. The answer to the amended complaint was-- First, a general denial and, second, a special plea of coverture. The trial resulted in a verdict and judgment for plaintiff. The defendant brings this appeal.

Syllabus by the Court

1. In an action on contract against a married woman, in this state a plea of coverture, without more, is not sufficient in law as a defense.

2. Where there is evidence to the effect that a witness has made any statement, oral or written, out of court, concerning any substantial matter in controversy, materially different and variant from what he has stated on the witness stand, such evidence tends to impeach either the recollection or the truthfulness of the witness, and the jury should, upon proper request, be instructed to consider the same in determining what weight should be given to his testimony. In order to introduce testimony showing that a witness, not a party, has made statements contradictory of his testimony, it is necessary, first, to examine the witness in regard to such statements; but when the witness is also a party, such statements are competent as substantive evidence as well as impeaching testimony, and such prior examination is not necessary, when, according to the regular order of trial such party is afforded full opportunity of testifying in regard to such statements.

3. Where an instruction prayed states the law applicable to the matters in controversy with substantial accuracy, it should be given, unless the same has been given in substance, or unless the pleadings or proofs are such that the refusal cannot properly make any difference in the result of the trial.

4. While no invariable rule is announced respecting absences of the trial judge during the argument of a cause to the jury the consequences resulting from such absence may be such as to necessitate the granting of a new trial.

James H. Brown, A. B. Seaman, and C. M. Bliss, for appellant.

O. E. Jackson and G. F. Dunklee, for appellee.

ELLIOTT, J., ( after stating the facts.)

1. The second defense of the answer was not sufficient in law. It was to the effect that, at all the times in the amended complaint mentioned, the defendant Elizabeth was and still is the wife of James Rose, and at all times aforesaid resided and still resides with her said husband in the county of Arapahoe aforesaid. The matters so pleaded constituted no bar to the plaintiff's cause of action. Notwithstanding her coverture, the defendant Mrs. Rose was competent to employ plaintiff as charged in the complaint. A married woman may, in this state, enter into any contract, express or implied, the same as if she were sole; she may, in like manner, be held liable thereon; and, in civil actions, she may sue and be sued in all matters, the same as if she were sole. Sess. Laws 1874, p. 185; Mills' Ann. St. § 3021; Code, § 6; Wells v. Caywood, 3 Colo. 487; Coon v. Rigden, 4 Colo. 275; Railroad Co. v. Allen, 13 Colo. 229, 22 P. 605, and authorities there cited.

The issues in this action as tried were quite simple: Was plaintiff employed by the defendant Mrs. Rose, or by her authority, express or implied? And, if he was so employed, what were his services reasonably worth? Plaintiff's testimony was, in substance, that Mrs. Rose requested him to work for her as a gardener and general laborer on her garden or ranch near the city of Denver; that she offered him $25 per month the year round; that, when he objected that this was not enough, she said that he should go to work for her, and that she would pay him as good wages as he could get anywhere else at gardening; and that he went to work, and so continued during the whole period according to this arrangement. Mrs. Rose's defense was that she did not employ plaintiff at all, at any price. It was admitted that Otis lived at the home of Mr. and Mrs. Rose for 4 1/2 years, and that he worked as a gardener and general laborer on the place during that time, except about 90 days. But in behalf of Mrs. Rose it was contended that Otis was employed by Mr. Rose, and that, in employing Otis, Mr. Rose acted in his own behalf, and not as her agent. The testimony in behalf of defendant was to the effect that Mr. Rose employed Otis agreeing to give him two dollars a day for all the time he (Otis) should assist him (Rose) in cement work; and that the residue of the time he (Otis) was to work at gardening and other general work for his board and lodging. It appeared that Otis worked 89 days at cement work during the entire 4 1/2 years; and that he received in all for his services $229, in addition to his board and lodging. The testimony at the trial was very conflicting. Certain witnesses contradicted each other in the most direct and positive terms. The legal questions arising during the introduction of the evidence were of the ordinary kind, and the assignments of error thereon require no discussion. The important questions raised at the trial were...