Marshfield Clinic v. Discher

Decision Date18 January 1982
Docket NumberNo. 81-214,81-214
Citation105 Wis.2d 506,314 N.W.2d 326
PartiesMARSHFIELD CLINIC, Plaintiff-Appellant, v. Agnes DISCHER, Defendant-Respondent.
CourtWisconsin Supreme Court

Paul A. Croake, Madison, argued, for plaintiff-appellant;James P. Schermetzler, Associated Attys., S. C., Marshfield, on brief.

James J. Bolgert, Stevens Point, argued, for defendant-respondent; Glinski, Haferman, Ilten, Mills & Dreier, S. C., Stevens Point, on brief.

BEILFUSS, Chief Justice.

This is an appeal from a judgment dismissing the complaint of the plaintiff by the circuit court. On December 12, 1980, Circuit Judge James H. Levi dismissed plaintiff's (Marshfield Clinic) complaint on the ground that no cause of action existed to hold a wife liable for the necessary medical expenses of her husband. The court of appeals certified the appeal to this court pursuant to sec. 809.61, Stats.1979-80. We granted certification to consider whether a wife is liable for medical expenses incurred by her deceased husband on his own behalf in the absence of her agreement to accept responsibility for the expenses.

The record in this case is almost totally devoid of facts because the trial court dismissed the complaint without making any findings. From the limited record, it is clear that the plaintiff provided medical services to Theodore Discher, the defendant's husband, from November 18, 1978 to April 15, 1979, the date of his death. The plaintiff alleged it had not been paid for these services. However, the plaintiff did not allege that any attempts were made to collect from the estate of the husband or that the husband's estate had no assets.

The trial court dismissed this action before it was aware of our recent decisions in Sharpe Furniture, Inc. v. Buckstaff, 99 Wis.2d 114, 299 N.W.2d 219 (1980), and In Matter of Estate of Stromsted, 99 Wis.2d 136, 299 N.W.2d 226 (1980). These cases represent a significant development in the common law necessaries doctrine in this state. In Sharpe this court held that the necessaries doctrine remains an important part of the common law today and that a husband may be held liable for necessary items bought by his wife on credit. The issue in Stromsted involved the related question of whether a wife may also be liable for necessaries furnished to her in the absence of any express contract. We held in Stromsted that a wife may be held liable for the family's necessaries along with the husband, but that the husband was primarily liable while the wife was secondarily liable. The present case deals with a situation where the necessary services were rendered to the husband and the creditor seeks to collect from the wife.

Our holding in Stromsted makes it clear that a wife shares with her husband a limited legal duty of support of the family. Stromsted, supra, 99 Wis.2d at 143, 299 N.W.2d 226. This includes liability for necessary medical expenses incurred by either spouse. Although the husband is primarily liable "(t)o the extent that the husband is unable to satisfy his obligation in this regard, the creditor may seek satisfaction from the wife." Stromsted, supra, 99 Wis.2d at 145, 299 N.W.2d 226. If the plaintiff in this case had proven that it had attempted to collect from Mr. Discher's estate, but had been unable to do so, Mrs. Discher would be liable. However no such showing was made or even attempted. Therefore, we remand to give the plaintiff an opportunity to prove that it either attempted to collect from Mr. Discher's estate but was unable to do so, or that any collection attempts would have been futile. If the plaintiff is able to make such a showing then it will be able to proceed against Mrs. Discher under the Stromsted rule. But we re-emphasize that the Stromsted rule only applies in the absence of an express agreement by the parties. 1 If it appears on remand that the clinic had expressly agreed to look only to the husband for payment of his medical expenses, then Mrs. Discher cannot be liable.

The argument has been raised in this case that the Stromsted rule is unconstitutional because it discriminates on the basis of gender and therefore violates equal protection. This issue was not raised in Stromsted and we declined to address any potential constitutional claims. Stromsted, supra, 99 Wis.2d at 140, n.3, 299 N.W.2d 226. We now hold that the rule does satisfy the test set forth in recent United States Supreme Court decisions dealing with gender based classifications.

To satisfy a constitutional challenge, a gender based rule must serve important governmental objectives and the means employed must be substantially related to the achievement of those objectives. 2

In considering the necessaries rule, as articulated in Sharpe and Stromsted, it is apparent that it serves several important governmental objectives. The rule benefits families by making it more likely that they will obtain necessary and appropriate goods and services. It enables wives to obtain credit more easily, rather than having to depend on their husbands to make necessary purchases. It also protects wives from economic hardship by placing primary liability on husbands. This is significant because, as discussed below, wives have made substantial economic gains in the past decade, but substantial economic disparities still persist between husbands and wives. The rule also benefits the providers of goods and services by assuring them greater certainty of payment when they extend credit to families.

The rule set forth in Sharpe and Stromsted is substantially related to the achievement of these goals. As we said in Sharpe :

"We are of the opinion that the doctrine of necessaries serves a legitimate and proper purpose in our system of common law. The heart of this common law rule is a concern for the support and the sustenance of the family and the individual members thereof. The sustenance of the family unit is accorded a high order of importance in the scheme of Wisconsin law. It has been codified as a part of our statutes, see e.g., sec. 767.08, Stats., and it has been recognized as a part of our case law. See Zachman v. Zachman, 9 Wis.2d 335, 338, 101 N.W.2d 55 (1960). The necessaries rule encourages the extension of credit to those who in an individual capacity may not have the ability to make these basic purchases. In this manner it facilitates the support of the family unit and its function is in harmony with the purposes behind the support laws of this state. The rule retains a viable role in modern society." 99 Wis.2d at 119, 299 N.W.2d 219.

The rule benefits both the family members and the providers of goods and services. This is especially true in cases dealing with medical care. A patient may need immediate care in an emergency and the hospital must act without delay. In many cases a patient may be injured or otherwise be physically or mentally unable to agree to pay when entering the hospital. The hospital can be fortified by knowing that it can rely on either spouse to pay for medical expenses. This will allow a hospital to render immediate care without being encumbered by having to make financial arrangements at that time.

While the necessaries doctrine remains important in modern society, it is clear from Stromsted, supra, 99 Wis.2d 136, 299 N.W.2d 226, that the old common law rule, whereby the husband was solely responsible for his family's necessities, is out of touch with the changing role of women. Thus, Stromsted held that wives share with their husbands the legal duty of support of the family. Stromsted, supra, 99 Wis.2d at 143, 299 N.W.2d 226. But it is also inappropriate to impose this obligation in the form of joint and several liability on the husband and the wife. Although many more married women are now working than were in the past, they still contribute less to the typical family income than do their husbands. The most recent statistics, contained in the Monthly Labor Review for October, 1981, showed that the number of married women (with husbands present) who were working had risen by nearly six million during the 1970's. This was the largest increase in the number of working wives in any decade in United States history. By March, 1980, 24.4 million wives-half of all wives sixteen years and over-were working or looking for work. 3 Despite these dramatic gains, the average working wife contributed only about one-fourth of the family's income. 4 While this is a substantial part of the total family income, "their average share has not changed in at least two decades." 5 In fact, there is some evidence to show that the contribution of working wives to total family income has remained rather constant over an even longer period of time. A study of working wives in Manchester, New Hampshire in 1920 showed that they earned only about one-fourth of their families' income. This is the same proportion as indicated by the current studies throughout the United States in the late 1970's. 6

The relatively constant overall contribution by working wives to their families' income seems partly attributable to the wide gap between average male and female earnings. Through 1978, women who worked full time earned only about 60 percent as much as men. 7 Women are still concentrated in low paying jobs. A study on changing marital characteristics of workers during the 1970's indicates that "(d)espite slight increases in the proportion of wives in higher paying professional-technical and managerial jobs, about 3 of 4 working wives were employed in lower paying clerical, service, operative, and retail sales jobs in March 1978-about the same proportion as 8 years earlier." 8

Equally as important for our purposes is the fact that many wives still do not work outside the home at all and many others work only part time. If approximately half of all married women work, then obviously half do not work outside the home. Further, a recent study reveals that "(a)bout two thirds of the...

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