D. H. Holmes Co., Limited v. Morris

• Decision Date: 02 November 1937
• Docket Number: 34452
• Citation: 188 La. 431,177 So. 417
• Court: Louisiana Supreme Court
• Parties: D. H. HOLMES CO., Limited, v. MORRIS et ux

177 So. 417

188 La. 431

D. H. HOLMES CO., Limited, v. MORRIS et ux

No. 34452

Supreme Court of Louisiana

November 2, 1937

Affirmed in part, and reversed and rendered in part.

Frymire & Ramos and C. L. Stiffell, all of New Orleans, for relator D. H. Holmes Co., Limited.

Baldwin Haspel & Molony, Robert R. Rainold, and Herman L. Barnett all of New Orleans, for respondents.

O'NIELL Chief Justice. HIGGINS, J., takes no part.

OPINION

O'NIELL, Chief Justice.

This is a suit on an open account, for purchases made by a married woman in her own name, without her husband's knowledge, and while she was living separate and apart from him. The amount of the bill is only $ 274.05. One item on the account is a diamond wrist watch, $ 150, and another item is a watch band, $ 100.The other items, being five in number, and amounting to only $ 24.05, are for clothing, $ 22.90, and two lunches, $ 1.15. The plaintiff asked for a judgment against the husband and wife, in solido, for the $ 274.05. The judge of the city court gave judgment against the husband, H. H. Morris, for the $ 274.05, but dismissed the suit against Mrs. Morris. Mr. Morris appealed from the decision, to the Court of Appeal, and the plaintiff appealed from that part of the decision which dismissed the suit against Mrs. Morris. The Court of Appeal decided that Mr. Morris was not obliged to furnish or pay for the wrist watch or the watch band, but was obliged to pay for the clothes and the two lunches. Hence the Court of Appeal reduced the amount of the judgment against Mr. Morris to $ 24.05, and affirmed the judgment dismissing the suit against Mrs. Morris. D. H. Holmes Co. v. Van Ryper, 173 So. 584. A writ of review was granted on the petition of the plaintiff, D. H. Holmes Company.

The question of liability of Mr. Morris for the wearing apparel and the two lunches which Mrs. Morris bought and had charged to her own account, amounting to $ 24.05, has passed out of the case, because Mr. Morris did not ask for a review of the judgment which the Court of Appeal rendered against him for the $ 24.05, affirming to that extent the judgment of the city court. Where a writ of certiorari or review is granted at the instance of one of the parties to a suit, to consider a complaint of a judgment of the Court of Appeal, under the provisions of section 11 of article 7 of the Constitution, and of Act No. 191 of 1898, carrying out the provisions of article 101 of the Constitution of 1898, an opposing party to the suit, who has not applied for a writ of review, cannot have the judgment amended for his benefit. In such cases the judgment of this court will be confined to the complaint or complaints of the party or parties at whose instance the writ of review was granted. Ware v. Couvillion, 112 La. 43, 36 So. 220; Succession of Thomas, 114 La. 693, 38 So. 519; Black v. Louisiana Central Lumber Co., 161 La. 889, 109 So. 538; Foley v. National Life & Accident Insurance Co., 183 La. 49, 162 So. 798; Cryer v. National Life & Accident Insurance Co., 183 La. 67, 69, 162 So. 804.

The Court of Appeal, in determining the question of liability of the husband for the debt incurred by his wife, drew a distinction between the articles of clothing and the lunches, amounting to $ 24.05, for the payment of which the husband was held liable, and the diamond wrist watch and the wrist band, amounting to $ 250 for the payment of which the husband was not liable. The court held that the indebtedness of $ 24.05 which the wife incurred for clothing and lunches came within the provision in article 120 of the Civil Code, that the husband is obliged to furnish the wife "with whatever is required for the convenience of life, in proportion to his means and condition." At the same time the court held that the wrist watch and wrist band were luxuries, which the husband was not obliged to furnish or pay for.

As we have said, the judgment against Mr. Morris for the price of the clothing and lunches, amounting to $ 24.05, has become final, and it may have been paid, as far as the record shows. We shall avoid, therefore, an expression of opinion, not only as to whether the judgment is correct in that respect, but also as to whether a judgment for those items on the account should have gone against both the husband and wife, in solido. In fact, the only purpose for which the writ of review was granted in this case was to consider and decide whether the plaintiff should have judgment against Mrs. Morris for the price of the wrist watch and the wrist band bought by her. We did not doubt that the judgment of the Court of Appeal was correct in declaring that Mr. Morris was not liable for the price of either the wrist watch or the wrist band, bought by his wife. The only law on which the plaintiff bases the suit against Mr. Morris is the declaration in article 120 of the Civil Code, that the husband is obliged to receive the wife "and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition." Accordingly, it was said in the case of Van Horn v. Arantes, 116 La. 130, 40 So. 592, 593, that, although a wife whose husband failed to support her could not sue him for alimony if she had no cause for a suit for divorce or for separation from bed and board, she had "the right to purchase the necessaries of life, at his expense, when he refuses to furnish the same." There is nothing in that doctrine to compel a husband to pay for jewelry bought by his wife, in her own name, and for her own use or adornment, while she is living separate and apart from him. It matters not that there was no divorce or judgment of separation from bed and board in this case. The husband and wife were living apart from each other by common consent. He paid her an allowance of $ 25 a month for her support, and never refused to furnish anything that she requested, as far as the record shows, previous to his refusal to pay the bill which brought about this suit. In the case of Schaeffer v. Trascher, 165 La. 315, 115 So. 575, 576, it was said that there was no authority for any outsider to take upon himself ex humanitate, the duty of the husband to furnish his wife the necessaries of life, unless the husband failed or refused to perform that duty. The plaintiff in that case, a furniture dealer, sued Mr. and Mrs. Trascher, and asked for a judgment against them in solido, for the price of a lot of household furniture that Mrs. Trascher had bought and with which she had furnished a separate apartment for herself while she was separated from her husband, pending a suit which she had brought for a separation from bed and board. Mr. and Mrs. Trascher became reconciled, and she, having no funds of her own with which to pay for the furniture, offered to return it to Schaeffer; but he refused to accept it in payment for the debt, and sought to hold Mr. Trascher liable, under article 120 of the Civil Code, and to hold Mrs. Trascher liable under the statute (Act No. 132 of 1926, now Act No. 238 of 1928) permitting a married woman to incur contractual obligations without consulting her husband. The district court held, as the city court has held in the present case, that the husband was liable for the price of the goods, but that the wife was not liable. Mr. Trascher appealed to the Court of Appeal, and that court affirmed the judgment against him. But the plaintiff, Schaeffer, did not appeal; hence the judgment in favor of Mrs. Trascher became final. Mr. Trascher brought the case to this court on a writ of review, and obtained a reversal of the judgment against him. The court cited article 120 of the Civil Code and the rule announced in Van Horn v. Arantes, 116 La. 130, 40 So. 592, and said:

"This rule compels the husband to pay in a proper case, and at the same time affords him some protection against the extravagance of a wife in purchasing what she does not need. Wanamaker v. Weaver, 176 N.Y. 75, 83, 68 N.E. 135, 65 L.R.A. 529, 98 Am.St.Rep. 621."

In a very recent case, Adams v. Golson and wife, 187 La. 363, 174 So. 876, 879, the court, in deciding that the husband was not liable for a tort committed by his wife while she was using his automobile for her own pleasure, cited with approval Schaeffer v. Trascher, supra, thus:

"The wife is without authority to contract a debt that will bind the community during its existence, not even for the necessary supplies for herself which her...