290 P. 468 | Cal. Ct. App. | 1930
THE COURT.
This action was brought to recover a balance of sums advanced by plaintiffs, who were the brothers of defendant's wife, to provide her with the necessaries of life. The defendant admitted his failure to provide, and the court found that the amounts claimed were advanced and actually used for that purpose. Defendant has appealed from the judgment which was entered against him.
[1] He contends that the necessaries not having been directly furnished or paid for by plaintiffs, although procured with the sums advanced, there can be no recovery. Section 174 of the Civil Code provides: "If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may in good faith supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." The husband's obligation is imposed by law, its performance being made of public concern, and if with knowledge of the facts he fails to perform he is liable for the reasonable value of such necessaries as may be furnished by others (Woodward on Quasi-Contracts, sec. 203), and it has been frequently held that money advanced under such circumstances and which has been actually so applied can be recovered from the husband. The leading case so holding is Kenyon v. Farris,
[2] Defendant further contends that he was financially unable to furnish the necessaries, and that consequently there was no neglect within the provisions of the statute. The record contains testimony that during the period in question he was a member of two prominent clubs and resided at a hotel in San Francisco. This was some evidence of his ability and supports the finding to that effect. [3] Moreover, financial inability to furnish the necessaries would not relieve him from liability therefor, if the same were furnished by others.
The trial court failed to find on the issue of the reasonable value of the necessaries procured and for that reason this court has caused testimony to be taken on that question. It was testified by Mrs. Fyfe's sister, who cared for her during the period the advances were made and who had *284 been a housekeeper and apartment house manager for many years, that she purchased the supplies and employed nurses for Mrs. Fyfe, and that she checked all the bills rendered. Her testimony was directed to the bills for one month only on the stipulation that her testimony would be the same for the other months of the period. She testified as to the rental value of the apartment occupied by Mrs. Fyfe, and defendant concedes that her experience qualified her as a witness on this question. She also testified that over a period of years she had employed graduate nurses for her family, for Mrs. Fyfe, and for other tenants of her apartment house, and that the regular charge therefor which she had paid was $35 per week; also that she checked each bill for food, drugs, etc., and that the items were reasonably priced. Defendant contends that she was not qualified to testify to these matters, and that her testimony should be rejected.
[4] It has been held that the amount paid for medical services is some evidence of the reasonable value thereof (Dewhirst v. Leopold,
The judgment is affirmed. *285