Green v. Horton

• Decision Date: 30 November 1950
• Citation: 326 Mass. 503,95 N.E.2d 537
• Parties: GREEN v. HORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 503

95 N.E.2d 537

GREEN v. HORTON.

Supreme Judicial Court of Massachusetts, Middlesex.

November 30, 1950

Argued Oct. 5 1950.

M. Rosenthal Boston, for plaintiff.

M. C. Taylor Boston, for defendant.

Before QUA, C, J and LIMMUS, RONAN, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

This action of contract on an account annexed was originally brought by Earl S. Johnson (hereinafter called Johnson), an undertaker, to recover the funeral expenses arising out of the burial of the defendant's wife, Albertina Green Horton. There was evidence that on December 5, 1949, after the action was commenced, Edna Green, the daughter of Mrs. Horton by a previous marriage, paid Johnson $645.75, the amount of his bill, and that he executed and delaivered to her at that time an assignment of all his 'right, title and interest in and to the claim and cause of action' for funeral expenses which he had commenced against the defendant. The case was tried to a jury and there was a verdict for Johnson. On the day following the verdict Johnson presented a motion for leave to amend the writ and declaration so as to 'described the plaintiff as: Edna Green, assignee of Earl S. Johnson.' The motion was allowed. The defendant's exceptions to this action and to the denial of his motion for a directed verdict bring the case here.

The exceptions raise the questions (1) whether the defendant can be held liable for the burial expenses of his wife, and (2) whether the plaintiff, as assignee of Johnson, can be permitted to prosecute the action in her onw name based on an assignment made after the date of the writ.

1. The following is a summary of the pertinent evidence: The defendant and Mrs Horton were married in 1926. It is not disputed that from 1937 to June 13, 1949, the date of Mrs. Horton's death, the defendant and his wife had not lived together. Concerning the circumstances of their living apart the record is very meager. The plaintiff testified 'that * * * [the defendant] had to support * * * [his wife] and that * * * [the latter] had to bring him into court several times for support.' The defendant testified that 'he was separated from * * * [his wife] about ten or twelve years ago; [and] that he agreed with the Probate Cort to give her $7 a week.' Mrs. Horton died in a hospital but prior to going there she had resided with her daughter. After her mother's death the plaintiff asked Johnson to get the body at the hospital and to make out the bill to her, and that she would turn it over to her attorney 'to see if she could get the money' from the defendant. Johnson performed the services in connection with the burial for which he rendered a bill in the amount of $645.75. As stated above, this was eventually paid by the plaintiff who received an assignment of the claim from Johnson. All of the arrangements for the funeral were made by the plaintiff. When Mrs. Horton died the defendant was notified, but he was not told that the funeral expenses had been incurred in his name. Mrs. Horton left no estate.

In support of the exception to the denial of his motion for a directed verdict the defendant argues that Johnson (the undertaker) dealt exclusively with the plaintiff, that the negotiations concerning the funeral were carried on without the knowledge and consent of the defendant, and that the defendant never entered into any contractual relatiions with Johnson. The defendant further argues that the funeral expenses were a claim against the deceased's estate. We shall confine our discussion to these contentions.

It was not necessary for the plaintiff to show that there was an express contract or one implied in fact. Recovery in cases of this sort is permitted on the basis of a contract implied in law. In Magrath v. Sheehan, 296 Mass. 263, at pages 264 265, 5 N.E.2d 547, 549, 108 A.L.R. 1223, it was recognized that a husband could be held liable for the funeral expenses of his wife, the court saying, 'The duty of a husband to provide a proper funeral for his dead wife and his legal liability to another for reasonable expenses justifiably incurred in providing such a funeral rest upon fundamental concepts of decency and humanity. Such a liability is not imposed upon the theory of an actual contract either express or implied in fact. It arises if at all by implicatiion of law 'from the necessity of the case.'' See Durell v. Hayward, 9 Gray, 248; Cunningham v. Reardon, 98 Mass. 538; Constantinides v. Walsh, 146 Mass. 281, 15 N.E. 631, and annotation in 108 A.L.R. 1226. The plaintiff, therefore, did not have to prove the existence of any contractual relatioins between Johnson and the defendant. It is true that in this Commonwealth the primary obligation for the funeral expenses of a married woman is on her estate, and if the husband pays then he is entitled to be reimbursed out of her estate, if she left one. Constantinides v. Walsh, 146 Mass. 281, 15 N.E. 631; Morrissey...