Chipp v. Murray

• Decision Date: 02 March 1963
• Docket Number: No. 43044,43044
• Parties: Virgil CHIPP, d/b/a Confidential Investigation Bureau, Appellant, v. Howard T. MURRAY, Appellee.
• Court: Kansas Supreme Court

Page 297

379 P.2d 297

191 Kan. 73

Virgil CHIPP, d/b/a Confidential Investigation Bureau, Appellant, v. Howard T. MURRAY, Appellee.

No. 43044.

Supreme Court of Kansas.

March 2, 1963.

Syllabus by the Court

1. In an action by a detective against a divorced man for services performed in connection with the divorce, under a contract independently made by the man's wife long prior to the divorce, the trial court sustained a demurrer to the petition on the ground that it failed to state a cause of action, and on appeal it is held the trial court did not err.

2. The services of a detective engaged at the instance of a wife to unearth the reputation, character, assets and activities of her husband are not a necessity for which the husband will be presumed to have pledged his credit by reason of the marriage relationship.

Clyde Wendelken, Wichita, argued the cause, and Henry E. Martz and Elliott Fry, Wichita, were with him on the brief for appellant.

Grey Dresie, Wichita, argued the cause, and J. Paul Jorgensen, Wichita, was with him on the brief for appellee.

SCHROEDER, Justice.

This is an action by a private detective against a divorced man for services performed under a contract independently made by the man's wife prior to the divorce. The trial court sustained a demurrer to the petition and appeal has been duly perfected.

The question presented is whether detective services for the wife were 'necessaries' for which the husband is presumed to have pledged his credit.

On the 12th day of October, 1961, Virgil Chipp, d/b/a Confidential Investigation Bureau (appellant) filed an action in the district court of Sedgwick County, Kansas, against Howard T. Murray (appellee). Insofar as the petition is material to the issue herein, it alleged:

'That on or about the 23rd day of May, 1960, Mrs. Feryl A. Murray engaged the Plaintiff to check the reputation, character, assets and activities of her husband, the Defendant, Howard T. Murray, and to secure information and data necessary for use in the efficient preparation and presentation of evidence and necessary for the protection of the financial and property rights of herself and their minor children during the hearings in and trial of a divorce suit which she later filed against Howard T. Murray in The District Court of Sedgwick County, Kansas, number B-4610. number b-4610.

'That the employment of a detective was particularly necessary for Mrs. Murray as significant information regarding Howard T. Murray's reputation, character, assets and activities was largely, if not entirely, unknown to her and as she was not possessed of the ability, training or equipment necessary to gather this information.'

Near the end of the petition it was alleged:

'That the services of the Plaintiff were vital, necessary and essential for the protection of the property rights of herself and the minor children and the protection of the emotional and financial security of herself and the minor children.'

It was alleged the plaintiff continued the performance of these services until the 5th day of June, 1961, when Mrs. Murray was granted an absolute decree of divorce from Howard T. Murray; and that Mrs. Murray paid the plaintiff a retainer fee of $100 on the 24th day of May, 1960, and an additional $280 on the account. The balance remaining due and unpaid and for which suit was filed against the defendant, after repeated demands, was $4,118, which is alleged to have been due on the 5th day of June, 1961, the date of the rendition of the divorce.

No allegation is made that the trial court was in any way confronted with this indebtedness in the divorce action. (See, Murray v. Murray, 189 Kan. 679, 371 P.2d 125.)

There is no Kansas case law in point, and very little in other states.

The only case law available holds that unless the wife is left destitute, and the services of a detective are necessary to secure necessities for herself and children, the husband is not chargeable with the cost of the services of a private detective independently employed by the wife. (Lanyon's Detective Agency v. Cochrane, 240 N.Y. 274, 148 N.E. 520, 41 A.L.R. 1432, and Dawson v. Greenberg, 5 A.D.2d 744, 169 N.Y.S.2d 143; and see, 17 Am.Jur., Divorce and Separation, § 631, p. 706.)

No allegation is made in the petition herein that the wife was left destitute, or that the detective's services were necessary to obtain necessities to support the wife or children. This is not the theory of the appellant's case, and we do not, therefore, pass upon this point.

The appellant relies on Gossett v. Patten, 23 Kan. 340. There a husband sued his wife for divorce, charging her with committing acts derogatory to her character, and it was necessary, in order to protect her character and good name, for her...