G. H. Busch & Son, Inc. v. Margaret Zempke, 82-LW-0001

• Decision Date: 07 January 1982
• Docket Number: 43575,82-LW-0001
• Parties: G. H. BUSCH & SON, INC. APPELLANT v. MARGARET ZEMPKE APPELLEE
• Court: Ohio Court of Appeals

G. H. BUSCH & SON, INC. APPELLANT v. MARGARET ZEMPKE APPELLEE

No. 43575.

82-LW-0001 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

January 7, 1982

APPEAL FROM BEREA MUNICIPAL COURT No. 20974.

For plaintiff-appellant: Wallace B. Heiser.

For defendant-appellee: Donald W. Ristity.

JOURNAL ENTRY AND OPINION

MARKUS J.

This cause came on to be heard upon the pleading and the ---------------------------- transcript of the evidence and record in the Berea Municipal Court, and was argued by counsel; on consideration whereof, the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Berea Municipal Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:

The plaintiff undertaker appeals from a Municipal Court judgment denying recovery for a funeral bill from the decedent's wife. Plaintiff contends that it was entitled to judgment as a matter of law. We agree and reverse for entry of an appropriate judgment.

Testimony at a referee's hearing showed that a divorce action was pending between defendant and her husband, so he was living with his infirm mother when he died. The decedent's cousin made the funeral arrangements with the undertaker. The cousin apparently had the mistaken belief that the decedent's marriage had been dissolved. The decedent's mother apparently volunteered to accept responsibility for the funeral bill even though she knew the divorce had not been obtained. They made no attempt to reach decedent's wife, partly because she had an unknown unlisted telephoned number.

According to the undertaker's employee, decedent's mother originally agreed to be responsible for the funeral expenses but later refused to pay the bill because she had learned that decedent and the defendant were never divorced. The decedent's wife was aware that this undertaker was providing funeral and burial services for her deceased husband, and she made no objection to any of the arrangements.

A wife has a common law obligation to pay her deceased husband's reasonable funeral expenses®1¯ when his estate is insufficient to cover those costs. Charles Melbourne &amp Sons, Inc. v. Jesset (1960), 110 Ohio App. 502. Writing for this court in the Jesset case, Judge Skeel said:

Footnote 1 The wife's Answer admitted that the amount plaintiff charged for the funeral and and burial expenses was reasonable. The Answer also admitted that she was the surviving spouse, and that the decedent's estate was insolvent.

"Funeral expenses of a deceased husband are the obligation of the widow, and as to her, are to be characterized as necessaries when the estate of the husband is insolvent, as is shown by the undisputed facts in this case."

Defendant cannot avoid this obligation on the ground that she was separated from her deceased husband and a divorce proceeding was pending at the time of his death. See G. H. Humphrey & Son v. Huff (1914), 3 Ohio App. 111; Eveland & Motsinger v. Sherman (1910), 9 Ohio N.P. (n.s.) 559.

Nor is defendant relieved from her obligation by the fact that the decedent's mother entered into a contract with the undertaker and made funeral arrangements without defendant's knowledge. See Eveland & Motsinger v. Sherman, supra; accord Fortson v. Iden (Ind. App. 1966), 214 N.E.2d 399; Mondock v. Gennrich (N.J. D. Ct. 1941), 21 A.2d 611; Samuels v. Hirz (Pa. Sup. Ct. 1959), 151 A.2d 640. Indeed, in these cases the Indiana, New Jersey, and Pennsylvania courts ruled that the decedent's relative had a right to obtain reimbursement from the decedent's estranged spouse for funeral expenses which the relative had contracted to pay and then paid.

Defendant admitted she is the decedent's surviving spouse and that his estate is insolvent. She denied liability on the grounds that she was not allowed to make the funeral arrangements, she was not allowed near her deceased husband's body, and flowers she sent to the funeral home were not accepted by the undertaker. However, at the referee's hearing defendant admitted that she never attempted to make the funeral arrangements, that she and her children visited the funeral home twice, and that she was in no way hindered from going near her husband's body when she visited the funeral home.

There was conflicting evidence whether flowers she sent to the funeral home were hidden from view behind a curtain or placed at the side of the casket. Plaintiff's employees did follow the mother's orders not to take defendant's flowers to the cemetery for the burial.

Even if we assume that defendant's claims about her flowers are supported by the manifest weight of the evidence, they do not constitute a valid defense against the undertaker's action. Her allegations do not show the undertaker failed to perform any services for which its claim is brought. Any determination of these disputed factual issues was not material to the disposition of this case. Therefore, we conclude that plaintiff is entitled to judgment as a matter of law.

That decision responds to plaintiff-appellant's first two assignments of error. Although it is dispositive of this appeal, App. R. 10(B) requires that we rule on the remaining claimed errors.®2¯

Footnote 2 Plaintiff has presented the following assignments of error:

1. THE TRIAL COURT ERRED IN RENDERING JUDGMENT FOR THE APPELLEE RATHER THAN FOR THE APPELLANT.

2. THE TRIAL COURT ERRED IN OVERRULING EACH AND ALL OF THE MOTIONS ADDRESSED TO THE REFEREE WHO WAS HEARING THE CASE, SUCH MOTIONS BEING:

(a) MOTION FOR JUDGMENT ON THE PLEADINGS. TRANSCRIPT BOTTOM PAGE 6.

(b) MOTION FOR JUDGMENT ON THE OPENING STATEMENTS AND THE PLEADINGS. TRANSCRIPT PAGE 9.

(c) MOTION FOR JUDGMENT ON THE PLEADINGS, THE OPENING STATEMENTS AND THE TESTIMONY OF THE DEFENDANT. TRANSCRIPT PAGE 42.

(d) RENEWAL OF SAID MOTIONS AT THE END OF ALL THE TESTIMONY. TRANSCRIPT PAGE 68.

3. THE TRIAL COURT ERRED IN OVERRULING THE OBJECTIONS OF THE APPELLANT TO THE FINDINGS AND RECOMMENDATIONS MADE BY THE REFEREE WHO HEARD THE CASE.

4. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR PERMISSION TO SHOW, BY INTERROGATORIES, THAT APPELLEE HAD RECEIVED LIFE INSURANCE FROM POLICIES ON HER HUSBAND'S LIFE.

5. THE TRIAL COURT ERRED IN NOT FINDING AFFIRMATIVELY FOR THE APPELLANT ON AN ISSUE OF FACT RAISED BY PARAGRAPH 2 IN APPELLEE'S ANSWER.

6. THE TRIAL COURT ERRED IN NOT FINDING AFFIRMATIVELY THAT APPELLEE WAS LIABLE TO APPELLANT ON CASE LAW REGARDLESS OF WHETHER OR NOT SHE WAS LIABLE TO APPELLANT ON A CONTRACTUAL OBLIGATION.

Plaintiff contends that its objections to the referee's findings and recommendations should not have been overruled by the trial court. Since the referee's report is not included in the record of this case,®3¯ we are unable to review that part of the trial court's decision. Accordingly, plaintiff's contention is not well taken.

Footnote 3 Although the parties were apparently mailed copies of the referee's report, the trial docket does not show that the report was ever filed with the clerk in accordance with Civ. R. 53(E)(1). However, neither party has raised an objection to this omission. Since a transcript of the referee's hearing was filed with the court, the judge was able to make a direct examination of the evidence. The referee's failure to file a report is not reversible error when the trial court can review the transcript of the referee's hearing before rendering judgment, as long as the trial court is not required to determine disputed factual issues by judging the credibility of the witnesses. Marino v. Marino (Ct. App. Cuy. Cty., March 20, 1980), No. 40705; Garrett v. Garrett (Ct. App. Cuy. Cty., July 20, 1978), No. 37430.

Likewise, we are unable to determine whether the trial court erred in finding against plaintiff on any issues of fact raised by defendant. The judgment entry does not show that the trial court adopted the referee's findings, and no findings of fact were requested or filed pursuant to Civ. R. 52. Therefore, plaintiff's argument is not well taken.

Finally, plaintiff contends the trial court should have granted its motion to present additional evidence from interrogatories to show that defendant received insurance proceeds from policies on her husband's life. That motion was filed after plaint...