| Ill. App. Ct. | Feb 14, 1901
delivered the opinion of the court.
Appellee’s counsel contend that appellee is entitled to recover on two grounds, viz., under section 15, chapter 68 of the Eevised Statutes, and by virtue of an alleged contract of appellee with appellant. Section 15 is as follows:
“ The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”
When husband and wife are living together, they and their children, if any, living with them, constitute the family. In the present case John Featherstone, the husband, was drinking continually for a year prior to the time when appellee was employed by John Featherstone’s Sons to take care of him, and his treatment of appellant, his wife, was such that she was compelled to leave him, taking her children with her, and he has contributed nothing to y O her or her children’s support since she was thus compelled to leave him. The extent to which he had been drinking alcoholic liquors is illustrated by the fact that John Featherstone’s Sons sent him to his house, and employed appellee to take care of him, and appellee, himself, testified that most of the time, from April 28, 1896, till September 19, 1896, a period of nearly five months, Featherstone was drunk nearly all the time; that while he was drunk he was vicious, would smash the furniture, threatened to shoot appellee a great many times, and sometimes he, appellee, had to hold him by main force. The question is whether the expense of the taking care of Featherstone by the appellee, under the circumstances stated, was a family expense within the meaning of the statute, for which the appellant is liable. The statute is in derogation of the common law, which imposes no liability on a wife in such case, and the general rule in regard to such statutes is that they must be strictly construed. But waiving that rule and considering the statute as wholly remedial, was it the intention of the legislature to impose upon a wife driven from home with her children by the ill-treatment of a drunken husband, and thus thrown upon her own resources for the support of herself and children, a liability for the care of her husband, whose condition, voluntarily produced, necessitated the care of a third person ?
In Fitzgerald v. McCarty, 55 Iowa 702" date_filed="1881-04-20" court="Iowa" case_name="Fitzgerald v. McCarty">55 Ia. 702, the Supreme Court of Iowa, commenting on a statute of that State providing that “ the expenses of the family ” should be chargeable on the property of husband and wife, said :
“It is the ‘expenses of the family’ which, under the statute, are chargeable on the property of both husband and wife. This implies, we think, the expense must have been incurred for something used in the family, or kept for • use, or been beneficial thereto.”
"We think this a reasonable interpretation. Were the services for which appellee claims compensation beneficial to the family % Appellee testified that at the time of the trial he was employed in a wholesale house, and prior thereto had been a police officer. He was, therefore, presumably a man of good physique. He says that sometimes he held Featherstone by main force. Evidently, therefore, he was physically able to control and restrain him. And yet, according to his own testimony, he permitted him to drink intoxicating liquors to such excess that he was drunk nearly all the time he was with him, about five months. Brown, a witness for appellee, testified that Featherstone was drunk nine-tenths of the time appellee was with him; that appellee prevented him “ from getting any fuller than was best.”
This witness evidently thought it best for Featherstone to be drunk nine-tenths of the time. The. legislature of the State is clearly of the opinion that it is not beneficial to a man’s wife or family to permit him to be drunk nine-tenths of the time, or at all. Section 9 of chapter 43 of the Revised Statutes gives to a wife a right of action for damages against any person who, by selling or giving intoxicating liquors, shall have caused the intoxication of her husband. The sort of care appellee took of Featherstone was not, as we think, beneficial to him, his wife or family.
To warrant a recovery under the statute, it must appear that there was a family in fact at the time the services of appellee were rendered. Schlesinger v. Keifer, 30 Ill. App. 253" date_filed="1889-02-13" court="Ill. App. Ct." case_name="Schlesinger v. Keifer">30 Ill. App. 253. The evidence is that prior to the time when appellee Avas employed by John Featherstone’s Sons, Featherstone’s family had been broken up and scattered by his drunkenness and misconduct, and his wife and children were living separate and apart from him. We are inclined to the opinion that the evidence falls short of establishing a contract on the part of appellant to pay appellee for taking care of her husband. Appellee testified that she came to his house at one time and said she wanted him to stay with Featherstone at the house. Appellant must have known that appellee had been staying with her husband, that she had not employed or requested him so to do, and that, consequently, he must have been so requested or employed by another or others. Under these circumstances, the expression of a wish by appellant is certainly slight ground from which to imply a promise on her part to pay for appellee’s services. Appellee’s book account, which he put in evidence, tends to show he did not render the services trusting to appellant for payment.
But there is another circumstance fatal to the verdict. The time when appellee claims appellant said she wanted him to stay at the house with her husband does not appear from the evidence. Appellee’s counsel, in their argument, assume that it was June first, but the evidence does not sustain this assumption. The testimony of appellee is ; “ She came to my house at one time to see me. Q. What, if any, conversation did you have with her; what did she say to you ? A. She wanted me to stay there. Q. What did she say % A. That is what she said, that she wanted I should stay with him and see to him and the house.” This is all the evidence with regard to the alleged contract, and it is manifest that it does not state the time of it. The time of the alleged contract not having been stated, there was no basis on which the jury, in case they should find that a contract was made, could estimate the damages.
The judgment will be reversed and the cause remanded.