Beers v. Public Health Trust of Dade County, 84-780

• Citation: 10 Fla. L. Weekly 1263,468 So.2d 995
• Decision Date: 12 March 1985
• Docket Number: No. 84-780,84-780
• Parties: 10 Fla. L. Weekly 1263, 10 Fla. L. Weekly 715 Lolan BEERS, Appellant, v. The PUBLIC HEALTH TRUST OF DADE COUNTY, Appellee.
• Court: Court of Appeal of Florida (US)

Page 995

468 So.2d 995

10 Fla. L. Weekly 1263, 10 Fla. L. Weekly 715

Lolan BEERS, Appellant, v. The PUBLIC HEALTH TRUST OF DADE COUNTY, Appellee.

No. 84-780.

District Court of Appeal of Florida,

Third District.

March 12, 1985.

On Rehearing May 21, 1985.

Jonas & Jonas and Daniel Jonas, Miami Beach, for appellant.

Hayt, Hayt & Landau and Sean L. Fisher and Alan M. Fisher, Miami, and Ned Kimmelman, Miami, for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

NESBITT, Judge.

Lolan Beers, defendant below, appeals a summary final judgment entered in favor of the plaintiff, the Public Health Trust of Dade County, for claimed medical expenses incurred by Beers' deceased wife. We reverse.

Beers and the decedent were married on December 9, 1976. In September 1978, Beers' wife, with no forewarning to her husband, left their marital home and moved in with her cousin. Although Beers attempted to locate his wife on numerous occasions, he did not become aware of her whereabouts until she entered Jackson Memorial Hospital on November 3, 1978. Beers' wife remained in the hospital through November 12, 1978, when she died. During her stay in the hospital, Beers' wife received medical services and supplies with an alleged value of $4,785.04.

The plaintiff, the owner and operator of the hospital, brought suit against Beers for the medical expenses incurred by his wife during her final illness. The cause of action was based upon the common law duty of a husband to support his wife and the derivative liability of a husband for his wife's necessaries. Beers responded by filing an answer which raised the defense of abandonment. After a hearing on cross-motions for summary judgment, the trial court entered a summary final judgment for the plaintiff, implicitly finding that Beers' abandonment defense was without merit as a matter of law. This appeal followed.

It is undisputed that as a general rule a husband is liable to a third party who supplies necessaries, including medical expenses, to his wife. ¹ Phillips v. Sanchez, 35 Fla. 187, 17 So. 363 (1895); Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981); Manatee Convalescent Center, Inc. v. McDonald, 392 So.2d 1356 (Fla. 2d DCA 1980); Holiday Hospital Association v. Schwarz, 166 So.2d 493 (Fla. 2d DCA 1964). This liability arises where the husband has a duty to furnish the necessaries to his wife and he fails in this duty. Schwarz, 166 So.2d at 495. The common law duty of a husband to supply necessaries to his wife arises from the marital relationship, Stern; see Fieldhouse v. Public Health Trust of Dade County, 374 So.2d 476 (Fla.1979), cert. denied, 444 U.S. 1062, 100 S.Ct. 1003, 62 L.Ed.2d 745 (1980), and is solely for the benefit of the wife, not for the benefit of the third-party creditor furnishing the necessaries. Schwarz, 166 So.2d at 495.

This general rule of liability of the husband, however, is subject to exceptions where the husband and wife are not living together. As will be further detailed below, when a wife has left her husband, through no fault of his, the husband's common law duty of support is terminated. Where this duty is terminated, the husband's In the absence of an agreement by a husband living apart from his wife to pay for goods or services furnished her, his liability for necessaries furnished her is dependent on his duty of support. Such liability cannot exist where the circumstances of the separation are such that the duty of support cannot exist, and it terminates when the circumstances become such, after a separation, that the duty of support terminates. Whether the duty and liability exist in any particular case of separation depends on the circumstances at the time the necessaries are furnished. One dealing with a wife who lives apart from her husband trusts to her representations at his peril, since the liability of the husband arises, not from her representations or the credit given to them, but from evidence of facts on which the law imposes the liability.

liability for the wife's necessaries is likewise terminated. The well-settled law in this area has been stated as follows:

....

Generally, the husband is not liable for necessaries furnished his wife when he fails to support her where such necessaries are furnished her at a time when they are living apart through her fault. Thus, he incurs no liability when his wife leaves him without his assent and without justification....

....

The rule that the husband is under no liability for necessaries furnished his wife while they are living apart through her fault applies generally, irrespective of the knowledge of the facts and circumstances of her fault by the one furnishing her with the necessaries. The husband is not required to give notice to the public to save himself from liability. [footnotes omitted]

41 Am.Jur.2d Husband and Wife §§ 355, 357 (1968). Accord Schwarz. See also Annot., 60 A.L.R.2d 7 (1958). Thus, where the spouses are living apart through the wife's fault, the husband is generally not liable for medical services rendered the wife. See Schwarz, 166 So.2d 496-97. The plaintiff has cited no cases, and we have found none that have applied a different rule. ² In addition, we find support for the rule that a husband is not liable for an abandoning spouse's necessaries in a corollary area of law that has been established in Florida.

As previously indicated, a husband's liability for necessaries supplied to his wife arises out of his common law duty to support his wife during the marriage. Therefore, that area of law dealing with a husband's duty to support his wife and a wife's right to temporary alimony while the couple is living apart is particularly relevant here. See generally 41 Am.Jur.2d Husband and Wife §§ 329-86 (1968). The pivotal decision in this area was rendered by the supreme court in Floyd v. Floyd, 91 Fla. 910, 108 So. 896 (1926).

In Floyd, the court held that before a wife could be awarded temporary alimony, it must be established both that the wife has a need for such support and that the husband has the ability to supply the support. The court then recognized that the decision of whether to grant or withhold temporary alimony was within the discretion The wife, in Floyd, petitioned the court for temporary alimony and suit money pending the outcome of the divorce action brought by her husband. The husband objected and raised the defense of abandonment and the fact that the wife did not need such an award. Despite these defenses the chancellor awarded the wife temporary alimony. The supreme court reversed:

                of the trial court, but that the discretion was not an arbitrary one and it must be exercised in accordance with established rules of law.  108 So. at 898.   One of those rules of law specifically addressed in Floyd concerned the defense of abandonment
                

The record shows that [the wife] has, from the date of her marriage to [her husband], lived in a foreign state apart from him; the reason therefor not being satisfactorily explained. [The husband] alleges that such residence has been without his fault; that he has often furnished her money to come to Florida; that she has ample means and income to conduct her defense. If these allegations, or either of them, are true, the petition for temporary alimony and solicitor's fees was not "well founded."

....

[I]t was the duty of the chancellor to determine these issues, and, if one or both of them were found in favor of [the husband], the petition for temporary alimony should have been denied.

108 So. at 899. The court specifically held that abandonment by a wife of her husband, without cause, is a complete bar to any right she may have to temporary alimony. 108 So. at 898-99. Since the court recognized that temporary alimony arises out of the common law duty of support, the court implicitly held that a wife's abandonment of her husband dissolves the husband's common law obligation to support his wife. ³ 108 So. at 898-99. See also Ross v. Ross, 431 So.2d 742 (Fla. 4th DCA 1983); Daniel v. Daniel, 243 So.2d 247, 248 (Fla. 1st DCA 1971) (on petition for rehearing); Bloom v. Bloom, 131 So.2d 27, 29 (Fla. 3d DCA 1961).

It necessarily follows that if it is established in the present case that Beers' wife abandoned him in September 1978, Beers' common law duty to support his wife was extinguished at that time. Since a husband's liability for his wife's necessaries, like a wife's right to temporary alimony, arises out of this common law duty, the extinguishment of the duty likewise extinguishes the liability for the necessaries. See Schwarz. It was therefore error for the trial court to grant a summary judgment for the plaintiff when Beers had raised the issue of abandonment.

Although Beers has characterized abandonment as an affirmative defense, it is not an affirmative defense in the classic sense. It is a defense only in the sense that Beers must raise the issue. See Annot., 60 A.L.R.2d 7, § 47 (1958). Once the abandonment issue is raised, the overwhelming majority of jurisdictions which have considered the issue hold that the burden shifts to the plaintiff-creditor to establish that the wife was justified or not at fault in leaving her husband. In other words, one who furnishes a wife with necessaries takes the risk of establishing a case Our decision today does not affect, and is not affected by, Florida's so-called "no fault divorce law." See Ch. 61, Fla.Stat. (1983). A husband's liability for his wife's necessaries arises from the common law duty of a husband to support his wife. The common law duty has not been replaced or altered by the Florida legislature. Cf. Fieldhouse (finding section 708.10, Florida Statutes (1977), constitutional, and holding that the statute does not affect the common law duty of a husband to support his wife). Therefore, the common law remains intact in this area. ⁴

against the husband, and the burden is on him to prove the existence of the...