Sodowsky v. Sodowsky

• Decision Date: 12 October 1915
• Docket Number: 4504.
• Citation: 152 P. 390,51 Okla. 689,1915 OK 784
• Parties: SODOWSKY v. SODOWSKY.
• Court: Oklahoma Supreme Court

152 P. 390

51 Okla. 689, 1915 OK 784

SODOWSKY v. SODOWSKY.

No. 4504.

Supreme Court of Oklahoma

October 12, 1915

Syllabus by the Court.

Under the statutes of this state it is ordinarily the duty of the husband to support his wife out of his own property or by his labor, unless he has no separate property and is unable to give such support by reason of his infirmity, while she is living with him as a wife, or apart from him under such circumstances as to give her the implied authority to pledge his credit for her necessary support, without regard to whether she has separate means of support if she is so living with him, and unless she has ample separate means if she is so living apart from him.

(a) If a husband breach his duty in this regard, and his wife entitled to such support, involuntarily supply the same out of her separate means, she may, under the statutes of this state, upon due demand, or when such demand be futile, sue and recover of him in an action at law reimbursement for the amount so expended for her necessary support.

(b) In such case, no promise to repay being shown, it must appear that such expenditures were involuntarily made for articles necessary to her support at a time and under circumstances when she was entitled to pledge her husband's credit therefor, and a demurrer is properly sustained to a petition deficient in that it does not so allege.

(c) The foregoing rule excludes all questions of alimony.

Evidence that a wife has paid off and discharged a debt of her husband, and has purchased property for him and allowed him to appropriate to his own use her property and money, in all to the amount of $475, is not, of itself, sufficient to exclude as matter of law the inference that the same was a gift to her husband, and to entitle the wife, upon the trial of an action against her husband therefor, to a peremptory instruction that the jury should return a verdict in her favor for the same.

(a) In such case plaintiff's request for a peremptory instruction is properly denied, and the question as to whether a husband receiving such benefits from his wife thereby becomes her debtor, and is liable to her in an action for the same, is properly submitted to the jury, and a verdict against her precludes her right to recover.

Additional Syllabus by Editorial Staff.

The words "any other person," as used in Rev. Laws 1910, § 3358, providing that, if the husband neglect to make adequate provision for the support of his wife, any other person may in good faith supply her with articles necessary for her support, and recover the reasonable value thereof from the husband, are broad enough to include the wife.

Commissioners' Opinion, Division No. 1. Error from District Court, Kay County; Wm. M. Bowles, Judge.

Action by Dosia Sodowsky against Clarence Sodowsky. Judgment for defendant, and plaintiff brings error. Affirmed.

J. E Curran, of Blackwell, for plaintiff in error.

Herman S. Gurley, of Blackwell, for defendant in error.

THACKER C.

The plaintiff in error, a wife, brought this action against the defendant in error, her husband, to recover $785.50 upon charges against him alleged, in substance, as follows:

That, defendant being indebted to plaintiff's father in the sum of $280 for two mule colts (purchased at $120), for a mare (purchased at $150), and for a sow and pigs (purchased at $10), the plaintiff paid off and discharged this indebtedness at defendant's instance and request; that at the instance and request of defendant, plaintiff loaned him five several sums of money amounting in their aggregate to $120.50; that defendant sold and used the proceeds of a heifer and two calves, the property of plaintiff, upon an agreement to reimburse her therefor to the amount of $36.50; that plaintiff purchased and paid for a wagon and harness for the defendant upon his agreement to repay her therefor the sum of $52; that defendant made use of four hogs, the property of plaintiff, upon an agreement to pay her therefor the sum of $40; and that during their marital relation the plaintiff expended for her support the sum of $300 upon the defendant's failure and neglect to provide such support, and notwithstanding he was able to do so out of his own property and by means of his labor.

The defendant demurred to plaintiff's petition, and the trial court sustained the same as to the plaintiff's sixth and last alleged cause of action; that is, the one in which $300 is demanded as reimbursement for money spent by her in her own support, overruling the demurrer as to the other causes of action alleged. The defendant thereupon answered plaintiff's first five alleged causes of action by a general denial, and special denials of owing or being indebted to plaintiff and of the correctness of her alleged account against him. The question of defendant's liability upon the said five first alleged causes of action was, upon the evidence adduced, submitted to the jury, resulting in a verdict for the defendant. Judgment was accordingly entered against the plaintiff, and the case is here for review upon her appeal.

Neither the plaintiff nor the defendant testified upon the trial, and the evidence in the case consists of the depositions of the plaintiff's mother and another witness in her behalf. The said testimony of plaintiff's mother was to the effect that plaintiff had paid her father the said sum of $280 in discharge of defendant's indebtedness to him; and the testimony of both the witnesses was to the effect that defendant did not deny this payment when questioned about it, and admitted that, in all, he had received from the plaintiff out of her separate estate money and property, corresponding in a general way to the items charged against him, to the amount of $475. In the deposition of plaintiff's mother the following questions and answers, read to the jury, appear:

"Q. At the time that Dosia bought the wagon and harness for Clarence, did Dosia and Clarence understand that Dosia was making Clarence a present of the property, or was he to pay her for it, if you know? A. Well, I don't know; but he told me that he had contracted for these things, and he expected to pay for them."

In Wass et al. v. Tennent-Stribbling Shoe Co., 3 Okl. 152, 41 P. 339, it is said in the opinion:

"The testimony, as before stated, shows that the husband received the $2,500 from the wife; but this fact alone is not sufficient to justify a court in saying that the money went to the husband as a loan. In fact, in the absence of proof, it might rather be presumed that money from the wife to the husband, or vice versa, should be considered as a gift, as the relation of man and wife is such that, generally speaking, each party to the marriage contract uses the property of the other with as much freedom as if it were their separate portion. * * * Under the evidence contained in the record of this case, we think it clearly appears that, when the wife came into her inheritance, she turned the same over to her husband, possibly with the vague idea that he would return it to her at some future time, but with no definite idea, other than that generally in mind by a wife when her husband takes possession of property belonging to her separately. * * * It is true he testifies that he told her that he would pay the money back, and that she testifies that she let him have the money with that expectation; but, notwith-standing this direct testimony, we think that the entire record would justify a finding that the relation of debtor and creditor did not exist. * * *"

It will be seen that there was much stronger evidence in the case just quoted of the relation of debtor and creditor between the husband and wife than in the instant case, where there is no evidence of the wife's version, and little throwing any light upon the husband's version, of the transactions in question; and the strongest evidence that the husband regarded any of them as creating a liability is the foregoing testimony of plaintiff's mother, in respect to the wagon and harness, that the defendant told her "that he had contracted for these things and he expected to pay for them"--he did not say he had contracted with his wife for them. There is no evidence whatever that plaintiff expended any of her aforesaid money at the instance or request of the defendant, or otherwise than voluntarily; and there is likewise no evidence that she did not voluntarily permit him to appropriate to his own use that portion of her property so appropriated by him, nor any satisfactory evidence as to whether she had reciprocal benefits from him. The evidence merely proves that he received to his own use some of her money and some of her property, without other explanation as to whether the transactions in which he did so imposed upon him a legal obligation to reimburse her therefor; and it does not necessarily exclude the inference of gift and establish the relation of debtor and creditor. If the verdict had been in her favor, this evidence would perhaps be sufficient to sustain it; but it is not of that certain and conclusive character in respect to whether he was legally bound to reimburse her as to have warranted a peremptory instruction in her favor, or to have legally precluded the jury from returning, as it did, a verdict against her, the burden of proof being upon her.

The action of the trial court in sustaining a demurrer attacking the legal sufficiency of plaintiff's petition in the sixth and last allegation of a cause of action for the aforesaid $300 expended by her in her own support presents a more serious question. Plaintiff's allegations in this regard are as follows:

"That the defendant is and at all of the time herein mentioned was the husband of the plaintiff, and able to support the

...