Phillips v. Sanchez

• Decision Date: 16 April 1895
• Citation: 35 Fla. 187,17 So. 363
• Parties: PHILLIPS v. SANCHEZ.
• Court: Florida Supreme Court

17 So. 363

35 Fla. 187

PHILLIPS v. SANCHEZ.

Florida Supreme Court

April 16, 1895

Error to circuit court, St. John's county; W. B. Young, Judge.

Action by Antonia E. Sanchez against John L. Phillips, executor of John L. Phillips, deceased. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Where the husband and wife live together, and the husband is an invalid, practically helpless, nearly blind, and otherwise afflicted, requiring constant care and attention, not fitted for the transaction of ordinary business, his wife transaction his business for him, he having, besides other income, over $40 monthly from the rent of buildings, besides a homestead and other property, and the domestic duties devolving upon the wife, together with the care and attention needed by the husband, required more labor than the wife was physically able to perform, and the work of the household could not be done without help, are circumstances constituting such a situation of affairs as authorizes the wife to engage the services of a domestic servant, and bind the husband for the payment of the same.

2. As a general proposition, the wife has no authority to bind the husband by contract unless she is his agent in fact. The well-known exception to this rule is an incident to her right of support from her husband, and she is for that purpose his agent, and can bind him to pay for such things as are necessary for the maintenance of herself and family; and domestic service in accordance with the means of the husband and social station of the family is such a necessity.

3. The question of the agency of the wife for the husband is not so much a question of law as of fact, provable as any other fact by circumstantial as well as positive evidence, with the burden resting upon the party alleging the agency. When a question arises whether a particular contract was within the scope of her authority as agent, such question becomes a mixed one of law and fact.

4. A hiring of a domestic servant by a wife under the circumstances stated in the first headnote is considered as a hiring by the husband, and he is liable for the wages accruing therefrom.

5. The law regards with suspicion claims for labor or services, when made against the estates of deceased persons by near relatives. The general presumption is that such services are rendered gratuitously, but such presumption is strong or weak in proportion to the nearness of the relationship. As between parent and child it is strong because of the moral and legal obligation imposed upon them in reference to each other, but as to other relatives it grows weaker as the parent tree is receded from. Each degree of retrogression therefrom lessens its force, until that point in relationship is reached where all moral and legal obligations are assimilated, and stand upon the same basis as to the rest of society.

6. In a suit against a defendant in his representative capacity as an executor it is erroneous to enter an individual judgment against him. In such suits, if plaintiff recover, judgment should be given against the defendant as executor, etc., to be made out of the goods, etc., of the estate of the deceased, and not against the defendant generally.

COUNSEL Jordan & MacWilliams, for plaintiff in error.

B. C Rude and W. W. Dewhurst, for defendant in error.

OPINION

LIDDON J.

The defendant in error was the plaintiff in the court below, and sued the defendant (plaintiff in error) upon a declaration the substantial allegations of which are that 'the plaintiff did, performed, and bestowed work and labor, care and diligence, in and about the business of him, the said John Lott Phillips, now deceased, and for him and in superintending and maintaining his household, and as a domestic servant therein, and in nursing and attending him in his last sickness; all at the special instance and request of him, the said John Lott Phillips, now deceased, who became indebted to said plaintiff; and in consideration of the work and labor, care and diligence, done, performed, and bestowed by the plaintiff as aforesaid, * * * did undertake and faithfully promise that he * * * would well and truly pay to the said plaintiff so much money as the plaintiff reasonably deserved to have'; and plaintiff avers that she reasonably deserved to have the sum of $1,200. The declaration further alleged the death of the said John Lott Phillips, and the appointment and qualification of the defendant as executor, and the nonpayment of the money claimed, etc.

The defendant, as executor, pleaded that his testator 'never was indebted as alleged.' A trial was had before A. J. Corbett, Esq., as referee, and judgment rendered for the plaintiff in the sum of $540 and costs of suit, from which judgment the defendant prosecutes a writ of error.

Twelve assignments of error are made upon the rulings and judgment of the referee. The first eight assignments are submitted without argument. Under the established rules prevailing in this court, they are regarded as abandoned, and we do not take them into consideration in rendering an opinion in this case.

The ninth assignment is that the judgment of the referee is against the evidence. The evidence in the case was conflicting. Such conflict, however, was mostly upon minor points of the controversy. We think the evidence sufficient to sustain a judgment for the plaintiff. It is not necessary to summarize the testimony. There are some matters of evidence, however, which require our attention. The evidence of the plaintiff shows that the contract was not made directly with the testator, but with his wife, with whom he was then living. No express authority is shown to have been given by the deceased to his wife to make the contract. It is contended by the plaintiff in error that the wife is not the agent of the husband, and has no implied authority resulting from the marital relation, to bind him upon a contract of the character sued upon. To make the point clear, it will be necessary to state in a condensed form the evidence bearing upon the making of the contract, which, however, is somewhat conflicting. Miss Sanchez, the plaintiff, is a sister of Mrs. Phillips. John Lott Phillips, the deceased, during the last two years or more of his life, was an invalid, and perfectly helpless. For years before that time he was able to be up a portion of the time, but had lost his eyesight almost entirely, and his wife transacted his business for him. Dr. Rainey, a physician, testified that during that last few years of his life the deceased was blind, had trouble in his legs, and was not fitted for the transaction of ordinary business, and at times required constant care and attention. The deceased owned a homestead and other buildings, which yielded a monthly rental of over $40, besides other property which added to his income. Besides his other infirmities, he had skin disease upon his face, hands, and extremities, which at times might be offensive, necessitating frequent changes of clothing. Mrs. Phillips kept boarders at her husband's house, and the domestic duties devolving upon her, together with the care and attention needed by her husband, required more labor than she was physically able to perform. The labor necessary for the work of the household could not be done without help. At this time Mrs. Phillips requested the assistance of the plaintiff, and told her that she should be paid for it. Upon this last point there is no conflict. The plaintiff entered into the service in February, 1881, and remained until the death of the testator, August 25, 1886, performing all kinds of domestic labor, and waiting upon and nursing the...