Schrader v. Hoover

• Citation: 80 Iowa 243,45 N.W. 734
• Parties: SCHRADER v. HOOVER.
• Decision Date: 23 May 1890
• Court: United States State Supreme Court of Iowa

80 Iowa 243

45 N.W. 734

SCHRADER

v.HOOVER.

Supreme Court of Iowa.

May 23, 1890.

Appeal from superior court of Council Bluffs; E. E. AYLESWORTH, Judge.

Action to recover for medical services rendered by the plaintiff to the defendant. There was a trial by jury, and verdict and judgment for defendant. Plaintiff appeals.Flickinger Bros., for appellant.

F. Benjamin, for appellee.

ROTHROCK, C. J.

1. At the time the alleged medical services were rendered, the defendant was the wife of David Hoover, and it is claimed by the plaintiff that the services were a necessary family expense, and chargeable to both the defendant and her husband, and that they are jointly and severally liable therefor. The defend ant answered the petition by a general denial. The evidence shows that the plaintiff is a physician and surgeon who resides at Iowa City in this state; and that the defendant, who resides at Walnut in this state, was sick; and that David Hoover, the defendant's husband, on or about the 23d day of October, 1884, sent a telegram to the plaintiff to go to Walnut and treat the defendant professionally; that he made the journey, and consulted with the local attending physician at the bedside of defendant, and afterwards had numerous consultations by letter with the local physician.

It is provided by section 2214 of the Code that “the expense of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” The court instructed the jury as follows: “(3) The burden of proof is upon the plaintiff to establish the allegations of his petition by a preponderance of the evidence. If you find from the evidence that the plaintiff rendered medical services to defendant at the request of defendant or her husband, and that the defendant's condition was such that it was necessary and proper for her to have such attendance and services, then, in that case, the husband and wife both would be liable to plaintiff jointly and severally,--that is, they would be liable both together, or either of said parties would be liable for same; and plaintiff, to recover same, could sue both of said parties jointly, or either of them alone, and recover for same.” This instruction is claimed to be erroneous, and we think the position of counsel for appellant is correct. The only question under the statute is, was the claim of plaintiff a family expense?...