Baker v. Oughton
| Decision Date | 06 March 1906 |
| Parties | BAKER v. OUGHTON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Appanoose County; Robt. Sloan, Judge.
Action to recover for board, clothing, medical attendance, and nursing furnished to defendant's wife, Mary Oughton, and infant child. Verdict and judgment for plaintiff. Defendant appeals. Reversed.H. E. Valentine, for appellant.
Howell & Elgin, for appellee.
It is admitted that defendant drove his wife and their infant child from his home in the nighttime, and that the wife took the infant with her to the home of her sister, the wife of the plaintiff. The evidence tends to show without show without substantial conflict that when thus driven from defendant's house the wife and child were in their nightclothes, or at any rate without adequate clothing, and that they took nothing with them save what they had on. The action is to recover for clothing and board, and also for medical attendance and nursing, furnished to the wife and child by the plaintiff during the ensuing seven months, and up to the time of the death of the wife, during which period the wife and child remained at plaintiff's house. It further appears that immediately after the wife went to plaintiff's house she instituted an action against her husband for divorce and alimony, and defendant filed a cross-petition asking for divorce, and that this proceeding was pending at the time of the death of defendant's wife.
1. While it is alleged in the petition that the board, nursing, etc., for which plaintiff seeks to recover was furnished to Mary Oughton at her request and on her promise of compensation, the action was not against the defendant on any express contract of his to make such compensation, and therefore the contention of appellant that plaintiff cannot rely on implied contract, having sued on express contract, is without force. Moreover, as the amount which the wife agreed to pay was not fixed by contract, the claim, even as against her, would have been one for the reasonable value of the goods furnished and services rendered, and therefore would be an action on implied contract. Allison v. Parkinson, Ex'r, 108 Iowa, 154, 78 N. W. 845;Rogers v. Millard, 44 Iowa, 466.
2. It is not contended that defendant would not be liable to plaintiff for necessaries supplied to his wife and child after they had been driven from his home without justifiable cause; but it was contended for defendant that if there was good cause for driving out his wife, and she voluntarily took the infant child with her, the plaintiff, having knowledge that the wife was thus driven away with good cause, could not recover, and that the court, in refusing to receive evidence that the conduct of the wife prior to her expulsion from defendant's home was such as to justify him in expelling her, committed error. Whatever may be the rule on this question at common law, there can be no question as to the liability of defendant in this case; for it is expressly provided in Code, § 3166, that “neither husband nor wife can remove the other nor the children from the homestead without the consent of the other,” and we think that when the defendant drove his wife from the home in which she had, as to possession, an equal right with him, he impliedly obligated himself to pay for her support, regardless of the cause of such expulsion. If he had abandoned her, leaving her in possession of the homestead, then the question of his liability might depend on whether his abandonment was justifiable (Menefee v. Chesley, 98 Iowa, 55, 66 N. W. 1038); but we do not think that it can have been the intention of the Legislature, in expressly prohibiting the husband from expelling the wife from the home, that she should nevertheless be left without any legal provision for her support, and that those who furnish her necessaries should do so subject to a determination of the question whether there was justification for the husband's act, no justification being recognized as sufficient by the statute. The argument in favor of this view is strengthened by the consideration that where the husband seeks a divorce from his wife, whether originally or by cross-bill, he may properly be compelled to furnish her temporary support and to pay her attorney's fees; the reason evidently being that she should not be deprived of the means of making defense and that the court ought not to be compelled in advance to determine whether she has a good ground of defense. Finn v. Finn, 62 Iowa, 482, 17 N. W. 739;Sherwin v. Maben, 78 Iowa, 467, 43 N. W. 292;Doolittle v. Doolittle, 78 Iowa, 691, 43 N. W. 616, 6 L. R. A. 187. Certainly there is no greater reason for allowing the wife temporary alimony and attorney's fees, when the husband is seeking to procure a divorce from her on a ground that is sufficient on the face of it, than there is for allowing her the necessaries of life after he has driven her from home, and while she is endeavoring to secure a determination of the question whether his action was without justification.
3. Some question is made as to an instruction casting upon the defendant the burden of proving that his...
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