Woods v. Kauffman and Kauffman
| Decision Date | 28 November 1905 |
| Citation | 91 S.W. 399,115 Mo.App. 398 |
| Parties | WOODS, Respondent, v. KAUFFMAN AND KAUFFMAN, Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
REVERSED AS TO ONE DEFENDANT AND AFFIRMED AS TO THE OTHER.
Campbell Cummings and William Baer for appellants.
(1) The court erred in overruling defendant's demurrer to plaintiff's evidence as to Rachel Kauffman, the wife. (a) Her demurrer at the close of plaintiff's evidence was not wholly waived by her failure to renew the demurrer at the close of the entire case, but will be considered by the appellate court in view of all the evidence in the case. Klockenbrink v. Railway Co., 172 Mo. 678-683, 72 S.W. 900; Luckel v. Century Bldg. Co., 177 Mo 608-626, 76 S.W. 1035; Bank v. Cent. Tr. Co., 179 Mo. 648-660, 78 S.W. 618; McPherson v. Railroad, 97 Mo. 253, 10 S.W. 846; Weber v. Cable Co., 100 Mo 194, 12 S.W. 804, 13 S.W. 587; Eswin v. Railroad, 96 Mo. 294, 9 S.W. 577; Jennings v. Railroad, 112 Mo 268, 20 S.W. 490. (b) There was no substantial evidence in the entire case to fix personal liability on the wife. (2) A wife's promise at common law (prior to sec. 6864, R. S. 1899), is absolutely void and no personal judgment can be obtained against her. Bragg v. Israel, 86 Mo.App. 338; Gazolla v. McCann, 63 Mo.App. 414-420-421; Bland v. Windsor, 187 Mo. 108; Bruns v. Capstick, 46 Mo.App. 403; Bachman v. Lewis, 27 Mo.App. 403; Bauer v. Bauer, 40 Mo. 61-63; Higgins v. Peltzer, 49 Mo. 152-156; Musick v. Dodson, 76 Mo. 624-625; Ingram v. Nedd, 44 Vt. 462-464; Cummings v. Miller, 3 Grant's cases (Pa.) 146. (a) Under section 6869, Revised Statutes 1899 (sec. 4340, R. S. 1899), no personal judgment can be rendered against the wife, although her personal property is made liable for necessaries; and a personal judgment against her is erroneous. Harned v. Shores, 75 Mo.App. 500-506; Rogers v. Hopper, 94 Mo.App. 437-441, 68 S.W. 239; Latimer v. Newman, 69 Mo.App. 76-82. (b) A contract of a married woman made prior to 1889 (R. S. 1889, sec. 6864--new sec.), did not create even a dormant obligation which might be made effective by the Act of 1889. Van Rheeden v. Bush, 44 Mo.App. 283-285; McFerrin v. Kinney, 22 Mo.App. 554-561; Davis v. Smith, 75 Mo. 219-225. (3) Under identical wording of the statutes "to contract," the courts have held it necessary where family necessaries are furnished by the wife while living with her husband, that she "expressly" agree to pay for same before she can be personally liable--the law will not imply an agreement to pay. Nelson, Admr., v. O'Neal, 11 Ind.App. 296; Nelson, Admr., v. Spaulding, 11 Ind.App. 453; Lindholm v. Kane, 92 Hun 369-370-371; Kegney v. Ovens, 18 N.Y. 482; Winkler v. Schlager, 64 Hun 87; Strong v. Moul, 22 N. Y. State Rep. 762; Tiemeyer v. Turnquist, 85 N.Y. 516; Hallock v. Bacon, 45 N.Y. 484; Powers v. Russell, 26 Mich. 179-184; Shellon v. Holderness, 94 Ga. 671; Rushing v. Clancy, 92 Ga. 769-771; Israel v. Silsbee, 57 Wisc. 222-230; Nesbitt v. Stephenson, 4 Ky. Law Rep. 448; R. S. Ind. 1894, sec. 6960, sec. 6962; R. S. Ind. 1901, sec. 6960, sec. 6962; Laws of New York, 1884, chap. 381, p. 465; Compiled Laws of Mich., 1871, vol. 2, sec. 4803, p. 1477; Compiled Laws of Mich., 1871, vol. 2, sec. 4806, p. 1478; Code of the State of Ga., vol. 2, 1895, sec. 2492, p. 252. (4) In the cases where the wife, known by the plaintiff to be such, has been held liable for family necessaries, purchased or received while she was living with her husband, the recoveries were supported by a special agreement on her part to pay for them, and such agreement was held to be necessary for the purpose, the rule in that respect is not modified by section 6864, Revised Statutes 1889. Laws of N. Y. 1884, chap. 381, p. 465; Lindholm v. Kane, 92 Hun 369; Tiemeyer v. Turnquist, 85 N.Y. 516. (5) Under section 4335, Revised Statutes 1899 (sec. 6864, R. S. 1889), no promise on the part of the wife will be implied, because she accepted the services and they enured to her benefit. Dempsey v. Wells, 109 Mo.App. 470, 84 S.W. 1015; Dolman v. Schlief, 179 Mo. 593, 78 S.W. 799.
Clarence C. Ward and H. A. Loevy for respondent.
If the jury was not misled, the judgment, if for the right party, will not be reversed. Alberger case, 117 Mo. 347, 23 S.W. 92; Long case, 91 Mo. 628; Moore v. Railway, 176 Mo. 547, 75 S.W. 672; Stone v. Vimont, 7 Mo.App. 277. The trial court cannot be charged with error in refusing a joint demurrer to the evidence when there is sufficient evidence to hold one of the defendants. A separate demurrer should have been asked by each of them to raise the question. Scott case, 50 Mo.App. 130, 135; Winson case, 50 Mo. 198; Noenninger case, 88 Mo. 589. But even a separate demurrer by her must have been overruled; her legal defense is coverture in 1882 and therefore disability to contract, but she did not plead coverture and therefore any instructions based on that status could not be given. Smoot v. Judd, 161 Mo. 673, 61 S.W. 854. And such separate demurrer must also have been overruled because the answer is a general denial while the instruction is asked on theory of confession and avoidance. Omohundro Case, 80 Mo.App. 313.
The plaintiff sued for twenty years' service as a domestic in the family of defendants. The answer was a general denial and a plea of the five-year statute of limitations.
The evidence shows that plaintiff is an epileptic, unable to read or write, or even count. She testified that in 1882, she went to defendant's place of business, on Olive street, in the city of St. Louis, to buy a trunk; that in a conversation with defendant Morris Kauffman, she complained of ill treatment at a boarding-house where she was then working; that he offered to take her in his employ and treat her well and she accepted his offer and entered into his service and continued to serve him as a domestic in his family for twenty years; that on account of ill treatment at his hands she ran away in 1904 and entered service in another family; that before she ran away she frequently threatened to leave and Kauffman would tell her she was bound to him; that she believed that she was bound to him and was afraid to leave; that in answer to all her demands for money, made from time to time during the period of her service, Mr. Kauffman would tell her he would put her money in the bank and get her a book and give it to her but he never did so.
Neighbors of the Kauffman family testified that plaintiff did the ordinary work of a domestic and that she seemed to be a faithful servant. One of the neighbors testified that Mrs. Kauffman told her that plaintiff had been a faithful servant and had helped to raise her family of children.
Plaintiff did not testify that there was any agreement between her and Mr. Kauffman as to what her wages should be or that anything was said about paying her wages. The evidence...
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