Attebery v. Attebery, 25950

• Decision Date: 04 March 1974
• Docket Number: No. 25950,25950
• Parties: Chester Louis ATTEBERY, Respondent, v. Florence Luella ATTEBERY, Appellant.
• Court: Missouri Court of Appeals

Page 87

507 S.W.2d 87

Chester Louis ATTEBERY, Respondent, v. Florence Luella ATTEBERY, Appellant.

No. 25950.

Missouri Court of Appeals, Kansas City District.

March 4, 1974.

David Collins, Collins & Grimm, Macon, for appellant.

Vance R. Frick, Frick & Mayberry, Kirksville, for respondent.

Before SHANGLER, C.J., WASSERSTROM and PRITCHARD, JJ., and RUSSELL, Special Judge.

WASSERSTROM, Judge.

Plaintiff husband brought an action for divorce against his defendant wife who filed a counterclaim alleging that during the period of separation of the parties she had expended $2,802.84 necessary for her support. Plaintiff thereafter dismissed his petition for divorce without prejudice, and the case was heard on the wife's counterclaim for necessaries. The wife requested that the case be heard by a jury, but that request was denied by the trial court. Upon submission to the trial court sitting without a jury, the Court found that the husband had expended approximately $23,000.00 for the support of the wife for the period from February, 1967, to February of 1970, and further that the husband had provided the wife with automobiles. The Court found the issues in favor of the husband and judgment was entered in favor of the husband; however, on her claim for attorney's fees sought in conjunction with the bringing of the action, the Court entered judgment in favor of the wife and against the husband for $500.00. The wife then appealed.

There is no question but that defendant had the right to bring this action for monies expended by her for past necessaries, and the remedy afforded by temporary alimony in the divorce case was not exclusive. Smith v. Smith, 300 S.W.2d 275 (Mo.App.1957); Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762 (banc 1932). However, the issue debated on this appeal is whether an action of this type is legal rather than equitable in character, so as to entitle defendant to a jury trial as demanded by her.

The nature of the wife's right in this situation is analyzed in the Restatement of the Law, Restitution, § 76, as being one of indemnity, to recover for performance by her of a duty which should have been discharged by her husband. In Comment b., Illustration 5, under that section the following example is given:

'In State X a husband is under a duty to supply necessaries to his wife and minor children and a wife is entitled to maintain an action against her husband. A wrongfully refuses to supply necessaries for his wife and minor child. The wife secures a position and provides herself and the child with necessaries. She is entitled to reimbursement from her husband for the value of the necessaries.'

The above Section 76 of the Restatement on Restitution is cited with approval in the leading Missouri case on this subject, Smith v. Smith, 300 S.W.2d 275 (Mo.App.1957), which is consistent with the concept of recovery on the theory of restitution under indemnity. The Smith case in turn is cited with approval in Swanson v. Swanson, 464 S.W.2d 225, 229 (Mo.1971).

Once it is established that the wife's cause of action rests on indemnity, the law is clear that her cause of action is legal in nature so as to give her a right to trial by jury. The rule in this connection is summarized in 41 Am.Jur.2d, Indemnity, § 38, page 728, as follows:

'General rules relating to actions and proceedings are, of course, controlling in actions to recover indemnity. In accordance with the general rules governing trials in civil actions, where there are questions of fact a right to trial by jury exists.'

See also Section 4, Comment e., of the Restatement on Restitution which states that recovery of a judgment for money on the theory of restitution is ordinarily by an action at law. Attention is also called to the decision in Bohun v. Kinasz, 124 Conn. 543, 200 A. 1015 (1938) where the court reflected the indemnity theory of approach by discussing the wife's right of action in this situation as being one on quasi-contract due to the fact that '(s)he was forced to pay an obligation for which another was primarily liable'; and it is to be noted that this leading case expressly holds that 'the plaintiff's claim is legal rather than equitable'.

This conclusion that the wife's right of action is one at law rather than in equity is further buttressed by the general rule that an action is to be deemed legal in nature, rather than equitable, where the only relief sought is the collection of money damages. This rule was the principal basis of the decision in Gallion v. McIntosh, 8 S.W.2d 1076 (Mo.App.1928), in a situation where an ex-wife sued her exhusband to recover past support money expended by her on behalf of a child, and which the court in Smith v. Smith, supra, deemed to be 'somewhat analogous' to the situation with which we are dealing in the present case. Also stating the general rule, that an action is to be considered legal rather than equitable when the only relief sought is money damages: Jaycox v. Brune, 434 S.W.2d 539 (Mo.1968); 47 Am.Jur.2d, Jury, § 42, page 660.

In an effort to justify an opposite result, the husband seeks to make the present case parallel to an action for separate maintenance, and he argues that since the latter is equitable in character, then so also should be the instant proceeding. That attempt to analogize the present action to a suit for separate maintenance cannot bear close scrutiny. It overemphasizes one point of superficial similarity, at the expense of ignoring vital differences.

The important difference between the action here from a suit for separate maintenance, is that the wife in this case is seeking to recover specific liquidated sums of money already paid out by her for necessaries, whereas in a suit for separate maintenance the wife is asking for future support. The problems are completely different. This can be illustrated, aside from other differences, by the single factor that the decree for future support may very likely call for modification from time to time as conditions change, and the consideration of changed conditions and the propriety and extent of modification are matters which would be far more appropriate for handling by a court than by either trying to reconstitute the original jury or by calling in successive juries. A suit such as the one here, for reimbursement of necessaries already paid for by the wife, has nothing to do with future support and presents a far simpler type of problem.

A much more proper analogy should be made of the present situation to the case where a tradesman supplies necessaries to a married woman living separately from her husband. A merchant, shopkeeper, or other person who directly supplies necessaries to a married woman who is separated from her husband possesses a cause of action against the husband based upon his common law obligation to support his wife, and based upon that, his implied promise to pay for the necessaries. Smith v. Smith, 300 S.W.2d 275, 276(1, 2) (Mo.App.1957); 41 Am.Jur.2d, Husband and Wife, § 349, page 291; Anno. 'Husband's liability to third person for necessaries furnished to wife separated from him,' 60 A.L.R.2d 7. As a part of his cause of action, the merchant or other third person must plead and prove that the separation of the husband and wife was not because of her fault. 'The law presumes the husband's assent to contracts made by the wife for necessaries suitable to his degree and estate from the fact of cohabitation; (Rutherford v. Coxe, 11 Mo. 223;) but when that ceases the tradesman is bound at his peril to take notice of the separation, (Porter v. Bobb, 25 Mo. 36,) and he can not recover of the husband for any supplies furnished to the wife unless the separation was on account of the misconduct of the husband, * * *' Reese v. Chilton, 26 Mo. 598, 600 (1858).

Thus, the tradesman's suit requires all the essential elements of a suit by a wife to recover the costs of necessaries, including a showing of marital fault on the part of the husband. Yet the tradesman's suit beyond doubt is at law and is triable to a jury as a matter of right, unless a jury trial is waived. The recovery sought is a money judgment, the right to which involves the determination of factual issues, which normally entitles one to a jury trial. Jaycox v. Brune, 434 S.W.2d 539, 542(3--6) (Mo.1968); Mills v. Berry, 395 S.W.2d 228 (Mo.App.1965); and Auffenberg v. Hafley, 457 S.W.2d 929 (Mo.App.1970). Note that the Reese case, an action by a tradesman for necessaries furnished a wife, was tried to a jury. So also were the cases of Rutherford v. Coxe, 11 Mo. 223 (1848); Porter v. Bobb, 25 Mo. 36 (1857); County of Audrain v. Muir, 297 Mo. 499, 249 S.W. 383 (1923); and the case of Pfenninger v. Brevard, 129 S.W.2d 924 (Mo.App.1939), was tried 'without the intervention of a jury.'

The aptness of the foregoing tradesman analogy becomes particularly apparent when the historical development of this whole problem is considered. From time immemorial the law has recognized a duty by a husband to support his wife. However, at the old common law, the wife was unable to enforce this duty directly, because of the disabilities surrounding a married woman. In order to give abandoned wives some relief, the common law courts devised a legal fiction under which it was postulated that the wife had an implied agency to pledge her husband's credit for the purchase of her necessaries; and then the tradesman who supplied her with the necessaries was given a legal right of action against the husband for the goods or services contracted under that assumed agency.

Now that the former disability of married women to sue has been removed by the modern...