Pfenninger v. Brevard, 24838.

• Decision Date: 13 June 1939
• Docket Number: No. 24838.,24838.
• Citation: 129 S.W.2d 924
• Parties: PFENNINGER v. BREVARD.
• Court: Missouri Court of Appeals

129 S.W.2d 924

PFENNINGER v. BREVARD.

No. 24838.

St. Louis Court of Appeals. Missouri.

June 13, 1939.

Appeal from Circuit Court, St. Louis County; Thomas J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Action by Anna K. Pfenninger against Claude Brevard for alleged necessaries furnished to defendant's wife. Judgment for plaintiff and defendant appeals.

Judgment reversed and cause remanded with directions.

A. Lowell Morris, of St. Louis, for appellant.

Hugh D. McCorkle, of St. Louis, for respondent.

BECKER, Judge.

This is an action against a husband for alleged necessaries furnished to his wife. The action originated before a justice of the peace where judgment was rendered for plaintiff. Thereafter the case was tried de novo on appeal in the circuit court, where the case was tried without the intervention of a jury, and judgment resulted again in favor of plaintiff. Defendant in due course brings this appeal.

Defendant below, appellant here, is the husband of Emma Brevard. Mrs. Brevard was adjudged non compos mentis in a proceeding in the Probate Court of the City of St. Louis in 1925, and her husband acted as her guardian from that time on until sometime in 1935, when he was removed as guardian and plaintiff-respondent, mother of Mrs. Brevard, was appointed successor guardian.

In April, 1936, plaintiff filed her amended statement in the justice court seeking to recover from defendant Claude Brevard the net sum of $354.19 for necessaries, including board, lodging, and clothing furnished Emma Brevard, non compos mentis, his wife, from January 19, 1935, to March 24, 1936, inclusive. The statement showed board, lodging, and care at seven dollars per week, and various items of clothing specifically enumerated and itemized in said statement. Defendant is credited on the account with payments of twenty dollars each in January, February, and March, 1936.

"A husband's prime and paramount duty, which begins with the marital relation and ends with its severance, is to support and maintain his wife in such a manner as is consistent with his situation and condition in life. * * * This duty found early recognition in the common law, and has not been lessened by legislation. Married women's acts, which have empowered the wife to contract and be contracted with, and to control and dispose of her property; and her investiture with the rights of a citizen have not rendered less obligatory a compliance with this duty of the husband. There exists on her part, it is true, the correlative duty of service, but this does not affect the husband's duty so far as the determination of the matter at issue is concerned. Plummer v. Trost, 81 Mo. 425; Rutledge v. Rutledge, , 119 S.W. 489." Block v. Wood, 288 Mo.Sup. 588, 232 S.W. 671, 674.

A husband is obliged to furnish necessaries for his wife and is bound to compensate a third person for them, whether furnished with or without his knowledge or consent, unless she is living apart from her husband, without fault on his part. Reynolds v. Rice, 224 Mo.App. 972, 27 S.W.2d 1059; Sauter & Adams v. Scrutchfield, 28 Mo.App. 150; Reed v. Crissey, 63 Mo.App. 184, 191. Where husband and wife are living apart those seeking to hold him liable for necessaries furnished his wife have the burden of showing that the separation was on account of his misconduct and not by reason of her delinquency. Audrain County v. Muir, 297 Mo. 499, 249 S.W. 383; Corbett v. Wade, Tex.Civ.App., 124 S.W.2d 889.

The record discloses that Emma Brevard was in the city sanitarium of St. Louis from August, 1933, to January, 1935, and that the physicians in said institution diagnosed her case as simple dementia praecox, which Dr. Zeitler of the city sanitarium described as "praecox characterized by deterioration of judgment and no hallucinations and no delusions or other strange ideas. * * * Not such a severe case that had to be incarcerated — a person who under supervision and guidance on the outside would get along all right; * * * that a person of similar condition would be better off on the outside at home and with her family, where she could be adequately taken care of, than in a more artificial environment which you would find in an institution."

The record discloses that while Emma Brevard was at the city sanitarium the defendant, her husband, paid twenty dollars per month to the city for her maintenance there.

In January, 1935, Dr. Zeitler told plaintiff Mrs. Pfenninger that in his opinion her daughter would be better off at home and with her family than in the institution, and in conformity with that suggestion plaintiff took Mrs. Brevard to her home. It appears that Mr. Brevard was not consulted and did not know that his wife had been...