Dauterive v. Sternfels

Decision Date09 December 1935
Docket Number1563
Citation164 So. 349
CourtCourt of Appeal of Louisiana — District of US
PartiesDAUTERIVE v. STERNFELS

Rehearing denied 164 So. 815.

Talbot Menuet & Le Blanc, of Napoleonville, for appellant.

Chas T. Wortham, of Donaldsonville, and Weeks & Weeks, of New Iberia, for appellee.

OPINION

CAILLOUET Associate Judge ad hoc.

Plaintiff appellee, a practicing physician, owning and operating the Dauterive Hospital, in New Iberia, La., sued Isadore W. Sternfels for $ 401.50, with interest thereon at 5 per cent. per annum from judicial demand, until paid.

He alleged that in January, 1932, he received in his hospital Mrs. Blanche Domingue Sternfels, defendant's wife, and thereupon treated her, and operated upon her; that he submitted his bill of $ 35 therefor, which was approved, and against which he was paid $ 8 on account.

He further alleged that about June 27 to July 14, 1934, and August 10 to August 21, 1934, he again so received and treated, and operated upon, Mrs. Sternfels. He detailed charges aggregating $ 374.50, attending this second treatment of, and operating upon, the defendant's wife.

He prayed for judgment in the aggregate sum of $ 401.50, i. e., the balance due of $ 27 on his 1932 bill and the 1934 charges; which last, or $ 374.50, he sought to recover on a quantum meruit.

The defendant first filed an exception of no cause or right of action and, subsequently, an exception to the jurisdiction ratione personae. This last exception was represented as being based upon the fact that the petition of the plaintiff failed to allege the domicile or place of residence of the defendant.

Both exceptions were overruled, and defendant thereupon filed answer, first reserving the benefit of said exceptions.

He denied all liability alleged against him, but, in oral argument before this court, and in supplemental brief, his counsel conceded that the claimed sum of $ 27 represented an obligation which was in existence prior to the institution of the suit for separation from bed and board, hereinafter discussed.

Defendant's answer specially alleged that on April 18, 1934, Mrs. Sternfels had filed suit against her husband for separation from bed and board, and had been granted alimony for her support, pendente lite, in the sum of $ 20 per month; that plaintiff's charges in the sum of $ 374.50 arose at a time subsequent thereto, and that the indebtedness therefor was that of Mrs. Sternfels, personally, and not that of defendant, inasmuch as she had contracted therefor without authorization of her husband.

The district court rendered judgment in favor of the plaintiff for the full sum of $ 401.50 sued for, being of the opinion that the debt of $ 374.50 having been contracted during the marriage, the same was a debt of the community, and that, therefore, the husband, Isadore W. Sternfels, was personally responsible therefor.

It is urged on behalf of the appellant that his exceptions were improperly overruled by the lower court.

However, as the record stood at the time of the trial of the exception of no cause or right of action, the district judge could only consider whether or not, on the face of the petition, there appeared to be alleged both a right and a cause of action against the defendant husband, and very properly overruled said exception.

As to the defendant's right to urge the second mentioned exception of jurisdiction ratione personae, it is clear that, by first filing his exception of no cause or right of action some two months before, he had waived the right to object to the jurisdiction ratione personae, for as said the Supreme Court of Louisiana, in First National Bank of Arcadia v. Johnson et al., 130 La. 288, 57 So. 930, 931, viz.: "The rule is that an appearance to the suit, except for the purpose of objecting to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the court." See, also, to the same effect, Fariss v. Swift, 156 La. 12, 99 So. 893.

On the merits, however, the judgment of the district court, in our opinion, is erroneous, in that it condemned appellant to pay the charges of $ 374.50 incurred in June, July, and August, 1934, by Mrs. Sternfels, personally, when she no longer lived with her husband, and after she had filed suit for separation from bed and board. The judgment that she sought to obtain was bound to have as its necessary legal effect the separation of the goods and effects of the community (article 155 Rev. Civ. Code), and said judgment, in so far as it was to dissolve said community, was to be retroactive as far back as April 18, 1934, the date upon which her suit was filed. Article 2432 Rev. Civ. Code. At the time that the stated charges were incurred, Mrs. Sternfels, although not then separated from her husband by judgment of court, was nevertheless living separate and apart from him, and, under article 2334 Rev. Civ. Code, her earnings, if any, were her separate property; and at that time, also, Mr. Sternfels, who, until the filing of the suit for separation from bed and board, had administered the community alone and as he pleased (article 2404 Rev. Civ. Code; Frierson v. Frierson, 164 La. 687, 114 So. 594), could no longer legally contract any debt on account of the community, etc. (Article 150 Rev. Civ. Code).

Before the filing of her suit, Mrs. Sternfels could not have incurred the charges of $ 374.50 as a debt of the community, except under the provisions of article 1786 Rev. Civ. Code, but then only if her husband had not, as head and master of the community, provided the medical and surgical treatment, etc., of which his wife stood in need. Under such circumstances, the debt would have been properly chargeable against the community, not because contracted for by the wife of her own authority, but because presumed to have been authorized by her husband, as head and master of the community, and the sole person competent to contract for it.

But it is contended on behalf of the plaintiff appellee that any necessary debt incurred by the wife during the marriage is a community debt, and that the charges of $ 374.50 incurred by Mrs. Sternfels with Dr. Dauterive were necessary, and, therefore, the debt therefor was chargeable against the community and appellant was properly condemned to pay the same.

The record not only is bare of any suggestion that Sternfels was advised of the necessity of incurring the charges at issue but Dr. Dauterive knew that Mrs. Sternfels was living separate and apart from her husband and that she had sued him for separation from bed and board. Tr. pp. 12, 13. But aside from this, Mrs. Sternfels was then receiving alimony pendente lite from her husband, in the sum of $ 20 per month, and her failure to pay for the hospital board and lodging furnished her by Dr. Dauterive to the aggregate sum of $ 126, of the $ 374.50 charges in question, did not render her husband liable therefor. Lopez v. Pampalone, 8 La.App. 729 (Orleans). And the same holds true, of course, of the remaining charges. It may be true, and it no doubt is, that such alimony was not sufficient to meet the needs of the medical treatment and surgical operation required by defendant's wife, but this did not authorize her contracting for the community. It was her legal right, even though continuing to accept the $ 20 per month alimony being paid her by her husband under the order of court, to file a motion to have such alimony increased to a sum commensurate with her changed needs brought about by the necessity of medical and surgical treatment, and it would have been within the province of the district judge to order her husband to pay more, provided only that this would have been "proportioned" to his means, under the circumstances. Article 148 Rev. Civ. Code; Surety Credit Co., Inc., v. Monteleone, 10 La.App. 352, 119 So. 576; Grimes v. Posecai, 175 La. 1, 142 So. 703. Said the Court of Appeal, in the first mentioned case, viz.: "It would be a rather dangerous doctrine to establish that pending a suit for separation from bed and board, where the Court has supervision over the needs and requirements of the wife and can exercise its authority, after due proof, by fixation of alimony, the wife of her own initiation could ignore the court's jurisdiction and go out and make contracts purely on her own volition and then charge same against the husband." The award of alimony to Mrs. Sternfels was made under the cited article 148 Rev. Civ. Code, presumably "proportioned to her needs and to the means of her husband," and rested within the discretion of the district judge. It was not a final judgment. It was open to re-examination and change by him, at any time, as altered conditions and circumstances warranted. Grimes v. Posecai, supra. While the plaintiff testified that the operations involved in the charges of $ 374.50 were necessary, his testimony does not suggest that they were of such pressing...

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9 cases
  • Tanner v. Tanner, 42020
    • United States
    • Louisiana Supreme Court
    • 30 d4 Junho d4 1955
    ...was given recognition. Talbert v. Talbert, 199 La. 882, 7 So.2d 173; Uchello v. Uchello, 220 La. 1061, 58 So.2d 385; Dauterive v. Sternfels, La.App., 164 So. 349; Alpha v. Aucoin, La.App., 167 So. 835; Dewenter v. Mott, La.App., 27 So.2d 444. However, although recognized it was not applied ......
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    • 10 d3 Maio d3 1967
    ...Gutierrez, 172 So.2d 753 (La.App.4th Cir. 1965); Cordaro v. Cardaro, supra; Daly v. Daly, 164 So.2d 391 (La.App.2d Cir. 1964); Dauterive v. Sternfels, 164 So. 349 lo, 174 So.2d 227 (La.App.4th Cir. 1965); Smith v. Smith, 185 So.2d 830 (La.App.2d Cir. 1966); Russ v. Russ, 126 So.2d 854 (La.A......
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    ...be had in the wife's action and in her name. Lewis v. American Brewing Co., 32 So.2d 109, La.App., Orleans 1947 (writ denied); Dauterive v. Sternfels, 164 So. 349, La.App., 1st Cir. The conclusion heretofore reached brings up for consideration defendants' third-party proceeding against plai......
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    ...defendant would not be liable to third party creditors. Joseph v. Schoenwald, 148 Wash. 649, 269 P. 797 (1928); Dauterive v. Sternfels,164 So. 349 (La.App.1935). The rule is stated in 41 C.J.S. Husband and Wife § 51(c) (1944): 'Where provision for the wife's support by the husband has been ......
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