MaLden Hospital v. Murdock
| Decision Date | 23 May 1914 |
| Citation | 218 Mass. 73,105 N.E. 457 |
| Parties | MALDEN HOSPITAL v. MURDOCK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Coggan, Coggan & Dillaway, of Boston, for appellant.
John Haskell Butler and Curtis H. Waterman, both of Boston, for appellee.
The plaintiff relies upon the well-settled doctrine that where a wife is living apart from her husband, with his consent and without provision having been made for her support, she carries with her his credit, and he is liable for necessaries furnished to her by third persons. Sturbridge v. Franklin, 160 Mass. 149, 35 N.E. 669; Mayhew v. Thayer, 8 Gray, 172, 175. But besides the right of pledging his credit for her support she may by petition filed in the probate court obtain against him an order or decree, under which he will be obliged to pay to her for her support such sums at such intervals as that court may find to be reasonably necessary for that purpose. R. L. c 153, § 33; McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696, Ann. Cas. 1912A, 934. And she may enforce such payment, if necessary, by appropriate legal process. R. L. c 153, § 35; Id. c. 152, § 29. Manifestly, when she has availed herself of this remedy, and has obtained a decree obliging him to pay to her such sums as it has been adjudged are the amounts for which he should be held, it no longer is true that provision has not been made for her support, and the ground for action by third persons against the husband no longer exists. This view is confirmed by the fact that the statute provides that an order for the support of the wife may be made upon the application of the husband as well as upon that of the wife; and the purpose of an application by the husband ordinarily would be to relieve himself from a multiplicity of suits by third persons for necessaries furnished to his wife and to have the total amount of his liability determined in one proceeding. Accordingly it was held under an earlier act (St. 1874, c. 205), now incorporated into R. L. c. 153, § 33, that a father was not liable for the support of his minor child after its custody had been given to its mother by a decree of the court which had jurisdiction to determine both the question of its custody and what provision, if any, should be made for its support. Brow v. Brightman, 136 Mass. 187.
In this case it appeared that upon the wife's petition orders had been made by the probate court for the payment by the defendant of a fixed weekly sum to his wife for her support. The latest one of these orders still is in force and has been complied with by him. It...
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