Billing v. Pilcher

46 Ky. 458 | Ky. Ct. App. | 1847

Chief Justice Marshall

delivered the opinion of the Court,’

Pilcher & Hauser having recovered a judgment against Billing for $25, their fee for services rendered to his wife in filing a bill against him for alimony and divorce, he prosecutes this writ of error for the reversal of the judgment.

It appears that on the 16th of September, 1845, the bill was sworn to by Mrs. Billing, and filed by Pilcher & Hauser, making general charges of cruel, inhuman and barbarous treatment against her husband ; that he had repeatedly laid violent hands upon her, and threatened to do so again; that he threatened to leave her and go to Europe, &c., together with other less serious charges. On the 23d of September, Billing answered the bill, denying every material allegation, and inviting his wife to return and live with him. And on the 4th of October she directed the dismissal of the suit and returned to her husband. Besides reading the bill and answer to the jury, the plaintiffs proved that $25 was the usual fee in such a case. The defendant then proved by a witness who had resided in the same house, that he had treated his wife well, kc,, and that she had no cause for leaving him and bringing the suit, and had returned as soon as she dismissed the suit.

The instructions of the Circuit Court.

A wife who is wrongfully turned out ot doors by her husband, carries with her an implied credit, and authority to charge her husband for ne-cessarie3.

Those who trust-the wife who has separated from her husband* must look to the grounds of separation; they trust-, the wife oil the-. credit of the husband at their peril, if the separation of the wife he- not justifiable.-

Upon this evidence the Court instructed the jury in effect, that if the plaintiffs bad filed the bill in good faith, upon the representations of Mrs. Billing, her husband was liable for the reasonable value of their services, and that her swearing to the bill was evidence of her representations to the plaintiffs. The propriety of this instruction is the only question which need be considered.

It is well settled that a wife who is wrongfully turned out of doors by her husband, or from ill treatment is obliged, by a regard to her own safety, to leave his house, carries with her an implied credit, or an implied authority to charge him for necessaries, which as a wrongdoer, he shall not be permitted to repel. The principle is, that being bound to support and protect bis wife, he cannot relieve himself from this obligation by his own wrongful act, but that if by his own improper conduct towards her, he drives her to seek support and protection from others, or justifies bei in so doing, the law still holding him to his duty under the new circumstances which he has brought about, implies an authority from him to any one-who may furnish at his charge, the necessary supplies or assistance, or an authority from him to his wife to procure them upon his credit. But the essential basis of this implication is, that the husband shall have wrongfully produced, or shall at least have assented to the separation which has rendered it necessary that the wife should receive from others the supplies or assistance which are essential to her support or protection. Hence it is laid down that if a tradesman deal with a wife separated from-her husband, it is incumbent on him to make inquiry-that he trusts her at his peril, and that if he would make the husband responsible for the articles furnished, he must prove that the separation occurred under such circumstances as will render the husband prima facie liable.

The same principles apply to the case of legal assistance furnished to the wife. If the conduct of the husband towards her, makes it necessary that she should apply to the law for securing either protection-or support, or if it be such as justifies her in so doing, the husband ivill be chargeable for the expenses thus rendered necessary by his own improper conduct. In the case of Shepherd vs McKoul, (3 Camp., 326,) -Lord Ellenborougb said: “if that proceeding (the exhibition- of articles of the peace,) was uncalled for, his wife could not make him liable for the expenses thereby incurred. But if she was turned out of doors- in the manner stated, she earriecS along with her a credit for whatever her preservation and safety required. She had á right to appeal, to the law for protection-, and she must have the means- of appealing effectually. She might, therefore, charge her husband for the necessary expense of this proceeding, as much as for necessary food and raiment.” We have seen no case and perceive no-sound principle which sanctions the dootrine-that the authority of the wife to- bind the husband, or the-right of others who deal with her or render assistance, to charge the husband, may be established either by the mere representations of the wife, or by the credit which those representations may gaimwith the persons to whom- she appeals. The authority rests not upon the representations of the wife, nor upon the credit given to them, but upon- the evidence of the facts upon which the law gives the authority. In case of separation, good faith requires that those who deal with the wife, intending to charge the husba-nd, should inquire from other sources, whether the circumstances will authorize them to charge him. And if they trost to the mere representations of the wife, they do it at their peril. Whether the evidence in this case would have authorized the jury to find for the plaintiffs on the ground that their legal services rendered to Mrs. Billing, were made necessary by the conduct of her husband, we need not decide. The view which we have taken of the law, satisfies us that the instruction given to the jury placed the question of the defendant’s liability on a wrong basis, and withdrew from the jury the real fact which their verdict should have decided.

Greene for plaintiff; Fry <$• Page for defendants-.

Wherefore, without noticing other questions which will probably not again occur, the judgment is reversed for the error in the instruction given, and the cause is remanded for a new trial in conformity with this opinion.