Stromsted's Estate, Matter of

• Decision Date: 25 November 1980
• Docket Number: No. 79-1796,79-1796
• Citation: Stromsted's Estate, Matter of, 299 N.W.2d 226, 99 Wis.2d 136 (Wis. 1980)
• Parties: , 20 A.L.R.4th 185 In the Matter of the ESTATE OF Florence S. STROMSTED, Deceased. Todd R. STROMSTED and Richard V. Reiss, co-personal representatives of the estate of Florence S. Stromsted, Deceased, Appellants, v. ST. MICHAEL HOSPITAL OF FRANCISCAN SISTERS, Respondent.
• Court: Wisconsin Supreme Court

Page 226

299 N.W.2d 226

99 Wis.2d 136, 20 A.L.R.4th 185

In the Matter of the ESTATE OF Florence S. STROMSTED, DeceasedTodd R. STROMSTED and Richard V. Reiss, co-personal representatives of the estate of Florence S Stromsted, Deceased, Appellants, v.ST. MICHAEL HOSPITAL OF FRANCISCAN SISTERS, Respondent.

No. 79-1796.

Supreme Court of Wisconsin.

Argued Sept. 30, 1980.

Decided Nov. 25, 1980.

Richard V. Reiss(argued), and Ludwig & Reiss, Milwaukee, on brief, for appellants.

Lorna J. Granger(argued), and Purtell, Purcell, Wilmot & Burroughs, S. C., Milwaukee, on brief, for respondent.

BEILFUSS, Chief Justice.

This is an appeal from a judgment entered against the Estate of Florence S. Stromsted in favor of St. Michael Hospital.This judgment ordered the personal representatives of the Estate of Florence S. Stromsted to pay to St. Michael Hospital the sum of $1,191.95 in satisfaction of a claim filed by the hospital against the estate.The estate appealed from the entry of this judgment.The court of appeals certified the matter to this court pursuant to the terms of sec. 809.61, Stats.We thereafter accepted the certification and ordered that this matter be scheduled for oral argument in conjunction with the case of Sharpe Furniture, Inc. v. Buckstaff, 99 Wis.2d 114, 299 N.W.2d 219(1980).

On September 20, 1978, Florence S. Stromsted, the decedent, was admitted to St. Michael Hospital.At the time of her admittance, she executed an authorization for treatment.However, this form mistakenly listed the name of the decedent's husband, Thor Stromsted, as the patient for whom the authorization was given.Aside from this improperly executed authorization form, there existed no written agreements or other express agreements between the hospital and either the decedent or her husband to pay the charges.The decedent remained in the hospital until September 27, 1978.The charge for this period of hospitalization totaled $1,166.95.

The decedent was admitted to the hospital for a second time on December 20, 1978.She was pronounced dead upon arrival at the hospital.A charge of $25 was billed for this service.

On January 4, 1979, the hospital filed its claim in Estate of Florence S. Stromsted with the probate court in the amount of $1,191.65.The personal representatives objected to the claim on the ground that the decedent's husband and not the decedent was liable for the cost of these medical expenses.

The parties appeared before the circuit court on October 22, 1979.At the hearing, counsel for the hospital took the position that the decedent's estate was liable on the basis of an "implied contract."¹Counsel for the estate argued that a married woman is not liable under implied contract principles for medical services rendered to her.The trial court held that the estate could be legally bound for the value of the medical services and entered judgment as noted above.

This review requires us to examine another aspect of the necessaries doctrine.In Sharpe Furniture, Inc. v. Buckstaff, supra, it was held that the necessaries doctrine continues as a viable component of the common law and that a husband may be held liable for necessary items purchased by his wife on credit.Where a wife binds herself by agreement to purchase a necessary item, her husband is also bound by operation of law.This case requires the court to focus on the nature of the liability of the wife for necessary services or items which have been rendered or delivered in the absence of an agreement which would bind her under the terms of an implied-in-fact contract.Therefore, the question presented is whether a wife may be held liable for necessaries ² in the absence of an express contract, just as her husband may be found to be liable where he has not expressly agreed to pay for necessary items or services.³

The common law rule was that the wife had no liability for household necessaries.Indeed, the common law refused to recognize the legal capacity of married women in general.See generally Pollack & Maitland, History of English Law (2d ed. 1898), 404-05.The fiction of the wife's legal existence as merged in that of the husband was offered as the justification for this social status.SeeFirst Wisconsin Nat. Bank v. Jahn, 179 Wis. 117, 124, 190 N.W. 822(1922)(discussion of common law in light of Wisconsin statutory law).Therefore the married woman could not be bound by her express agreements.

This common law principle has found expression in Wisconsin case law.In Stack v. Padden, 111 Wis. 42, 86 N.W. 568(1901), this court held that a married woman could not bind herself by a contract at law for necessaries.In that case, a physician sued a married woman for the reasonable value of services rendered to her and to her son.The physician argued that a married woman may be held liable for necessaries if she has a separate estate.Id. at 43-44, 86 N.W. 568.The court rejected the argument and found no liability on the part of the wife.

Ch. 529, sec. 1 of the Laws of 1921 was thereafter enacted.This law created sec. 6.015, 1921, Stats., ⁴ which provided:

"Women to have equal rights.(1) Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects."(Emphasis added.)

Sec. 6.015 operated to remove the common law disability of married women with respect to freedom of contract.In construing this section of the statutes, this court had occasion to write:

"When sec. 6.015 says that 'women shall have the same rights and privileges under the law as men in ... freedom of contract,' it means what it says, and that is that women shall be as free as men to make personal contracts."First Wisconsin Nat. Bank v. Jahn, supra, 179 Wis. at 125.

Sec. 6.015 had the effect of granting to married women the legal capacity with respect to the right to contract which the common law refused to grant.

The terms of sec. 6.015, Stats., left open the question of whether, in the absence of a contractual agreement, a married woman could be held liable for necessaries by virtue of a contract implied in law.Over the years, especially within the context of liability for medical services, this court has often held that a married woman had no such liability.In Jewell v. Schmidt, 1 Wis.2d 241, 250, 83 N.W.2d 487(1957), the court said:

"The early rule was that it was the husband's absolute duty to pay for medical services to his wife, and that this duty could not be altered even where the wife agreed to pay the bills, recognized them as her personal debt, and in fact made payments on them from time to time from her separate estate.Stack v. Padden(1901), 111 Wis. 42, 86 N.W. 568.This absolute bar has been softened by subsequent decisions, based on the statutes extending the legal rights of married women.The present rule is that a married woman may contract for medical services in her own right, but, in the absence of the establishment of such an express contract between the wife and the person rendering the service, the husband, and not the wife, is the person liable for such expenses and the one entitled to recover for them.(Cases cited.)"

The rule of Jewell v. Schmidt, supra, constitutes an application of the principles of the necessaries doctrine to a specific type of necessary service, i. e., medical services.The rule had the effect of retaining the legal immunity of the married woman with respect to contracts for necessaries which are implied by the operation of law.Since the decision in Jewell, the principle that liability for medical services is borne by the husband and not the wife has been repeated on numerous occasions.See e. g., Luther Hospital v. Garborg, 71 Wis.2d 460, 462, 238 N.W.2d 529(1976);Seitz v. Seitz, 35 Wis.2d 282, 295, 151 N.W.2d 86(1967);Fischer v. Fischer, 31 Wis.2d 293, 309, 142 N.W.2d 857(1966);Fee v. Heritage Mut. Insurance Co., 17 Wis.2d 364, 117 N.W.2d 269(1962);Puhl v. Milwaukee Automobile Ins. Co., 8 Wis.2d 343, 349, 99 N.W.2d 163(1959).

The hospital challenges this rule and seeks to impose direct liability on the wife on a theory of quasi-contract.⁵It is argued that, whatever purpose was served by the old common law rule, that purpose is outdated in a society where women have become familiar components of the business and professional world.A theory of legal incapacity, it is argued, is anachronistic and does not have a place in modern society.

We agree with the essence of the hospital's argument.In Sharpe Furniture, Inc. v. Buckstaff, supra, this court noted that the nature of a husband's liability for his family's necessaries was essentially an obligation arising as a contract implied as a matter of law between the husband and the creditor.When a creditor proves that a commodity or service which is suitable and proper for the family and reasonably needed by it has been supplied to and used by the family without payment for the item, he has demonstrated the elements necessary for recovery under a theory of quasi-contract for unjust enrichment.SeeSeegers v. Sprague, supra, 70 Wis.2d at 1004, 236 N.W.2d 227.The husband, as a party liable for the support of the family, is viewed as the proper party against whom this liability should be enforced.

The woman shares with her husband the legal duty of support of the family.Seesec. 767.08, Stats.There is nothing unique about the status of the married woman that it would prevent her from being liable on a theory of a quasi-contractual obligation.We therefore hold that a wife, in addition to obligations arising out of her implied-in-fact contractual obligations, may be held liable to an implied-in-law contractual obligation in a manner similar to that which her husband will be held liable as set forth in Sharpe Furniture, Inc....