Kerner v. Eastern Dispensary and Cas. Hospital

• Decision Date: 18 June 1956
• Docket Number: No. 205,205
• Citation: 123 A.2d 333,60 A.L.R.2d 1,210 Md. 375
• Parties: , 60 A.L.R.2d 1 Henry P. KERNER v. EASTERN DISPENSARY AND CASUALTY HOSPITAL.
• Court: Maryland Court of Appeals

Page 375

210 Md. 375

123 A.2d 333, 60 A.L.R.2d 1

Henry P. KERNER v. EASTERN DISPENSARY AND CASUALTY HOSPITAL.

No. 205.

Court of Appeals of Maryland.

June 18, 1956.

D. H. Stanley, Washington, D. C., and William A. Volkman, Jr., Bethesda, for appellant.

Vivian V. Simpson, Rockville (Simpson & Simpson, Joseph B. Simpson, Jr., Rockville, and Alan Johnstone, Washington, D. C., on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Eastern Dispensary and Casualty Hospital, a corporation organized under the laws of the District of Columbia, brought this action in the Circuit Court for Montgomery County against Henry P. Kerner, of Montgomery County, and his estranged wife, Teresa Aiken Kerner, of Washington, and Joseph A. Herbert, Jr., of Washington, the conservator of Mrs. Kerner's estate, to recover for her hospital care and treatment from January 17, 1952, to June 30, 1955. Plaintiff filed its claim for $12,010.30, less a credit of $4,500 received from the proceeds of sale of Mrs. Kerner's home, leaving a balance due of $7,510.30.

Plaintiff filed a motion for a summary judgment, which was supported by an affidavit of plaintiff's secretary. The secretary alleged: (1) that Mrs. Kerner entered the hospital on January 17, 1952, and has been a patient there ever since (2) that the bill for hospitalization and treatment as of June 30, 1955, less the credit of $4,500, amounted to $7,510.30; (3) that Mrs. Kerner's husband promised to pay the balance due on the bill when her separate estate had been exhausted, but he failed and refused to pay the same; (4) that Mrs. Kerner has no separate estate from which the bill can be paid; and (5) that the care and treatment of Mrs. Kerner was a necessary for which her husband is justly liable.

Mrs. Kerner, who has been in a critical condition in the hospital since January 17, 1952, was returned non est. The conservator also was returned non est.

Kerner filed the general issue pleas that he never promised as alleged, and that he never was indebted as alleged, and a third plea 'that he and his wife have been separated for more than thirty years; that although his wife, without just cause for the separation, left him, he many times attempted to reconcile his marriage, the wife always refusing; the wife at all times even at marriage had a separate estate and disclaimed any maintenance or support of any kind; the defendant having been denied the benefits of a happy marriage and home and the wife having many times indicated her desire not to be in any manner obligated to or tied-up with her husband * * *.'

Kerner also filed an affidavit opposing entry of summary judgment. In this affidavit he admitted that he was married to Mrs. Kerner, but he disputed the claim and swore that he did not owe any part of it. He then alleged the facts of his defense: (1) that his wife, at the time of her separation from him, without just cause, had a separate estate; (2) that they had been separated for about thirty years; (3) that he had never promised to make any payment to plaintiff of any kind; and (4) that the hospital services were not necessaries after January, 1953

The Court summarily entered judgment in favor of plaintiff for $7,510.30. From that judgment Kerner appealed to this Court.

Our Summary Judgment Rules provide that a party asserting a claim, or a party against whom a claim is asserted, may at any time amke a motion for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law, the judgment sought shall be rendered forthwith. General Rules of Practice and Procedure, part 2, subd. 4, rules 1(a), 4(a); Frush v. Brooks, 204 Md. 315, 104 A.2d 624; Nardo v. Favazza, 206 Md. 122, 110 A.2d 676; Cox v. Sandler's, Inc., 209 Md. 193, 120, A.2d 674.

Generally, a husband is liable for the necessaries provided for the support of his wife. Whatever may be a husband's circumstances, his wife is entitled to food and clothing to preserved her life and health, and to medical attendance and nursing when she is sick. 1 Bishop, Marriage, Divorce and Separation, sec. 1189. The Maryland statutes, which preserve to the wife the ownership and enjoyment of her property, do not relieve the husband of his common-law obligation to maintain his wife and to pay for medical attendance upon her. Generally, therefore, it is the husband's duty to support his wife when she is confined in a hospital, and it is only when he is unable to do so that resort can be had for her maintenance to her separate estate. Bliss v. Bliss, 133 Md. 61, 74, 104 A. 467.

This rule applies even where the husband and wife are living apart, provided that the separation was not the fault of the wife. In Barnes v. Starr, 144 Md. 218, 124 A. 922, 34 A.L.R. 809, the Court held that, although the husband and wife had separated, the husband was liable for his wife's board, medical and nursing care, and expenses of her funeral. But there the wife had been receiving alimony pendente lite in a suit which she had brought, and a divorce suit which the husband had instituted had been dismissed after a full hearing on the merits. Thus there was nothing to show that the separation was the fault of the wife.

However, the rule is different where the wife deserts her husband without just cause and continues to live apart from him without his consent. When a wife is living apart from her husband, a prima facie presumption arises that she has no right to pledge his credit, and a wife seeking to recover from the husband for necessaries furnished her while living apart from him has the burden to prove that the separation was caused by his fault, or that they were living apart by mutual consent. Town of Milton v. Bruso, 111 Vt. 82, 10 A.2d 203; Sawyer v. Richards, 65 N.H. 185, 23 A. 150; Pritchard v. Bigger, 288 Mich. 447, 285 N.W. 17.

In an early English case, Lord Holt announced that if a wife elopes, and a tradesman, who has no notice of the elopement, gives credit to her, even for necessaries, the husband is not liable; but if the wife leaves without an adulterer and...