Sewall v. Hatcher

DOAN, J. Dr. C. A. Sewall sued Mrs. Emma Hatcher, a married woman with separate property, for professional services alleged to have been rendered at her instance and request to her husband, W. H. Hatcher, who was made co-defendant originally, but as to whom suit was dismissed, and against whom no judgment was asked. Writ of attachment was issued and levied upon her separate property, consisting of real estate, the title of which was in the name of Mrs. Hatcher, who denied the employment of plaintiff and appellant, or any agreement on her part to pay him out of her separate property. The action was first brought in the justice’s court, where trial was had before a jury, and a verdict rendered for .the defendant. An appeal was then taken to the district court, where the case was again tried to a jury before his Honor H. C. Truesdale, at the conclusion of which trial the jury, on the instruction of the judge, returned a verdict for [321] the defendant. A motion for a new trial because of the ruling of the judge in taking the ease from the jury was granted after the death of Judge Truesdale, by Hon. Webster Street, his successor upon the bench, before whom the case was again tried upon the evidence that had been formerly submitted and the record in the case, and a judgment rendered for the defendant. From this judgment and the order of the court denying a new trial the plaintiff appealed to this court. It is assigned as error: 1. “That the court erred in not finding as a fact that, as alleged in the complaint, the defendant Mrs. Hatcher distinctly and unequivocally employed the plaintiff to render for her, and on her sole account, the professional services sued for.” 2. “As a matter of law, the court erred in determining that it was not competent for this married woman to bind her separate estate upon such a contract as that sued on, where the services rendered were for the benefit of her husband. ’ ’ This last error is incorrectly assigned. The court did not make any such determination. It was not questioned that Mrs. Hatcher could have legally bound herself to pay from .her separate estate for the services alleged to have been rendered by Dr. Sewall for her husband. The only question passed on by the court was, Did she do so ? This question— one of fact—the court decided in the negative. It appeared in evidence that the plaintiff and defendant resided in Prescott; that W. H. Hatcher had his leg broken at Mescal Station, about twenty-eight miles from Prescott, and wrote a letter to Mr. Goldwater, a merchant in Prescott, advising him of the accident, and requesting him to send Mrs. Hatcher and a surgeon. Mrs. Hatcher and Mr. Goldwater testified that Goldwater read the letter to Mrs. Hatcher, and asked her what doctor he should send. She replied that Dr. Sewall always attended Mr. Hatcher. Goldwater testified that he sent one Thomas Duke to notify Dr. Sewall of the case. Duke testified that he delivered the message. Goldwater testified that he also saw the doctor on the street and personally told him, and hired the team driven by the doctor on that occasion, and afterwards paid the liveryman for the same. Dr. Sewall testified that he received the word from Duke and Goldwater, hired the team from the liveryman, and [322] then learned that Mrs. Hatcher desired to go with him, drove to her house, and she got in the wagon and rode with him twenty-eight miles to her injured husband, assisted in earing for him, and returned with them next morning. Dr. Sewall testified that in the wagon, on the road going, Mrs. Hatcher told him she would see him paid. After their return he attended the injured man several weeks, until he was fully recovered. After his recovery the doctor presented to Mr. Hatcher two several bills made out against W. H. Hatcher, and wrote a couple of letters to Mr. Hatcher in regard to the account, all of which are filed in evidence. Afterwards he made out an account against Mrs. Hatcher, and his attorneys mailed that to her, and afterwards brought suit upon it. Mrs. Hatcher said she rode out in the wagon with Dr. Sewall and the driver, and returned next morning with them and her husband, but testified in direct contradiction to Dr. Sewall in regard to his employment by her,'and stated that she did not employ him herself, nor agree to pay him out of her separate estate. This case was tried to a jury in the justice’s court in the first instance, and their verdict found the facts against the plaintiff on the evidence presented. The same finding has been twice made by the district, court. We have repeatedly held that a “finding of the lower court upon a controverted fact will not be disturbed by this court on appeal, unless such finding is clearly against the weight of the evidence.” This proposition, like the kindred one that “the verdict of a jury on conflicting testimony will not be disturbed on appeal by this court, if there is any evidence to support the verdict,” has been so generally conceded that it appears self-evident, and does not need the citation of authorities in its support. The cases of Anderson v. Territory, ante, p. 185, 56 Pac. 717; Stockton Ice Co. v. Argonaut Land etc. Co., (Cal.) 56 Pac. 885; Lower Kings River Reclamation Dist. v. McCullah, 124 Cal. 175, 56 Pac. 887; Cheney v. Woodworth, 13 Colo. App. 176, 56 Pac. 979; Pinson v. Prentise, 8 Okla. 143, 56 Pac. 1049; Board of Education v. Hobbs, 8 Okla. 293, 56 Pac. 1052; Schultz v. Barrows, 8 Okla. 297, 56 Pac. 1053; Everett v. Akins, 8 Okla. 184, 56 Pac. 1062,—indicate that the courts of last resort are at present fully sustaining the view heretofore held on this question. The evidence presented in this action unquestionably places this case fully [323] in line with the authorities above cited. The judgment of the district court is therefore affirmed. Street, -C. J., and Davis, J., concur.