Ott v. Hentall

• Decision Date: 16 March 1900
• Citation: 47 A. 80,70 N.H. 231
• Parties: OTT v. HENTALL. HUTSON v. SAME. WALKER v. SAME. HARRIS v. SAME.
• Court: New Hampshire Supreme Court

47 A. 80

70 N.H. 231

OTT

v. HENTALL.

HUTSON

v. SAME.

WALKER

v. SAME.

HARRIS

v. SAME.

Supreme Court of New Hampshire. Grafton.

March 16, 1900.

Actions by George J. Ott and others against Samuel Hentall. Judgments for plaintiffs, and defendant's exception to rulings on a question of costs overruled.

Assumpsit. Facts found by the court. The defendant so treated his wife as seriously to injure her health, in consequence of which she left him. After this the plaintiffs furnished her, at her request, medical attendance, nursing, and board; she pledging the defendant's credit for the same. Hutson made a bill against the wife, but was told by her that the defendant was obliged to pay it. The services, etc., were necessary for her recovery, and were adapted to her condition. Each of the plaintiffs knew that she was living apart from her husband. She had $700 or $800 on deposit in a savings bank. A feeble-minded son was partially dependent upon her for support. Judgments are to be rendered for the parties entitled to them upon the foregoing facts. The defendant attended a caption of a deposition in Massachusetts, agreeably to a notice given by Hutson. The witness, after testifying in part, refused to complete the deposition. Both parties desired that the witness should complete it, but no request was made by the defendant for means of compulsion, and Hutson understood that compulsion could not be resorted to. The court ruled, subject to the defendant's exception, that he was not entitled to costs, under section 12, c. 225, Pub. St., for attending the caption.

Dearborn & Chase and Burleigh & Adams, for plaintiffs.

Lewis W. Fling and Alvin F. Wentworth, for defendant.

CHASE, J. "Marital rights and duties are established by law." Among them is the obligation of the husband to suitably maintain his wife according to his circumstances on life. He cannot relieve himself of the duty by his own misconduct. If he compels his wife to leave him, and does not make suitable provision for her support, she carries with her authority to obtain upon his credit necessaries of life adapted to her condition and his circumstances. Town of Rumney v. Keyes, 7 N. H. 571; Pidgin v. Cram, 8 N. H. 350; Allen v. Aldrich, 29 N. H. 63; Walker v. Laighton, 31 N. H. Ill; Tebbets v. Hapgood, 34 N. H. 420; Morris v. Palmer, 39 N. H. 123, 120; Ray v. Adden, 50 N. H. 82, 83; Sceva v. True, 53 N. H. 627, 631; Ferren v. Moore, 59 N. H. 100. Accurately speaking, this authority is not referable to the law of agency. It may be exercised against the will of the husband. It is not revoked by his insanity. The law gives it "by force of the relation of husband and wife." Read v. Legard, 6 Exch. 636. It has been designated "authority from necessity." Johnston v. Sumner, 3 Hurl. & N. 201. And the agency has been termed "agency in law" or "agency of necessity." Eastland v. Burchell, 3 Q. B. Div. 432, 435, 430; Bergh v. Warner, 47 Minn. 250, 50 N. W. 77. It is authority to do for the husband "what law and duty require him to do, and which he neglects or refuses to do for himself, and is applicable as well to supplies furnished to the wife when she is sick, insensible, or insane, and to the care of her lifeless remains, as to contracts expressly made by her." Accordingly it was decided in Cunningham v. Reardon, 98 Mass. 538, that the husband was liable for the reasonable funeral expenses of his wife, whom he had compelled by cruelty to leave him, and who had died while living apart from him. Raynes v. Bennett, 114 Mass. 424, 4.28; Alley v. Winn, 134 Mass. 77, 79. See, also, Staples' Appeal, 52 Conn. 425, in which it was held that a husband could not charge his wife's estate for her funeral expenses. There are authorities which hold that where necessaries are furnished a wife living apart from her husband without her fault, and she has funds of her own, the liability of the husband depends upon the question of fact whether her means are adequate to her support. Liddlow v. Wilmot, 2 Starkie, 86; Dixon v. Hurrell, 8 Car. & P. 717. The defendant relies upon Hunt v. Hayes, 64 Vt. 89, 23 Atl. 920, 15 L. R. A. 661, and Litson v. Brown, 20 Ind. 489, in support of this proposition. In the first-named case the plaintiff, who was the father of the defendant's wife, sought to recover for necessaries furnished her while living apart from the defendant under such circumstances as would enable her to pledge his credit unless she was prevented from doing so by the fact that she received $2,000 annually from him by virtue of an antenuptial contract. The decision, which was not unanimous,—Munson, J., dissenting,—was founded largely upon the authority of Warr v. Huntly, 1 Salk. 118, Liddlow v. Wilmot, and Litson v. Brown. The entire report of Warr v. Huntly is ns follows: "The case was: An ordinary workingman married a woman of the like condition, and after cohabitation for some time the husband left her, and during his absence the wife worked; and, this action being brought for her diet, it was held that the money she earned should go to keep her." These statements are so general that the case is not a very satisfactory authority, especially in view of the fact that on the same page of the report there is another case (Etherington v. Parrot) in which the same Judge (Holt, C. J.), in the course of the opinion, said: "If a husband turns away his wife, he gives her credit wherever she goes, and must pay for necessaries for her,"—and on the following page still another case (Robinson v. Greinold), in which he said: "Though the wife be ever so lewd, yet while she cohabits with her husband he is bound to find her necessaries, and pay for them; for he took her for better, for worse. So, if he runs away from her, or turns her away." In Liddlow v. Wilmot it appeared that the wife had £100 a year and some plate, but it did not appear from what source she obtained them. Lord Ellenborough submitted to the jury the question whether she was provided with resources adequate to her situation, with the instructions that "if so, and particularly if she has derived that provision from him, the action cannot be maintained. * * * The only credit given to the husband is an implied one, which arises from his situation and the inadequacy of the funds of the wife. * * * If so [she was adequately provided for], the circumstance repels all idea of implied credit." If the husband actually provides his wife with resources sufficient for her support, he performs his duty, and there is no ground upon which an implied promise to pay for necessaries can arise. But, if he does not provide the resources, it is difficult to understand why the wife's marital right and the husband's marital duty do not remain unsatisfied. The right and correlative duty do not depend upon the inadequacy of the wife's means, but upon the marriage relation. In Hunt v. Hayes the court, in referring to the agency arising from necessity, mentioned in some of the cases, says: "It logically follows that when there is no necessity there can be no agency, for 'cessante ratione legis, cessat ipsa lex'; and there can be no necessity when the wife has means of her own with which she can supply herself." But the necessity referred to in these cases is not so narrow in its scope as seems to be here indicated. It comprehends the wife's need that the husband's duty shall be performed. The husband's obligation creates the necessity for the agency, if it be so termed, not the fact that she would otherwise be destitute. In Litson v. Brown, two months after the defendant's wife left him because of his improper conduct, he induced her to sign a deed of real estate by causing the purchaser to pay her one-third of the purchase money. The plaintiff boarded her both before and after this transaction. It was held that the defendant was liable for the board furnished prior to the wife's receipt of the money, but was not liable for that furnished afterwards, because the wife was possessed of means sufficient to supply her reasonable wants...