18 Haw. 215 | Haw. | 1907
OPINION OF THE COURT BY
Tliis is an action for tbe reasonable value of medical services-furnished by plaintiff to the wife of defendant while she was-living separate and apart from her husband. The trial was had before the circuit court, jury waived. The findings of fact by the court are substantially as follows: That plaintiff, a duly licensed physician, practicing in Pomona, California, furnished professional treatment to the wife of defendant on the credit of her husband during the months of August and September, 1903 that in September, 1902, the wife of defendant, with his consent.,, left Honolulu where she and her husband were then residing-.
The findings of fact, with-the exception of that which held the wife to be in fault for causing the separation, are sustained by the evidence. The only evidence to sustain that finding is furnished by the testimony of the defendant himself, the proceedings in the divorce case not properly having been admitted. See Sturbridge v. Franklin, 160 Mass. 151. He testified that his wife left him in September, 1902, with his consent and on account of her conduct in making false accusations against him and also that at that time their relations were not amicable.
A husband is bound to support his wife, and, if he refoses to do SO', one who furnishes necessaries to the Avife on the credit of the husband may recover from him the reasonable value thereof. Hut where the husband and wife are living separate and apart, one furnishes necessaries to the wife’ at his peril and must show, .among other things, in order to recover, that the wife was in need of the necessaries, that the husband failed to supply her. with them, and that she had authority to bind her husband, that is, that she was justified in living apart from her husband. See Dole v. Gear, 14 Haw. 556; Kekoa v. Borden, 5 Haw. 23; Luka
Defendant claims that he is not liable because the separation was the fault of the wife in making false accusations against him. This alone was not sufficient to entitle him under our statutes to a decree of divorce or separation from his wife, and, when considered in connection with the other evidence in the case, ■did not warrant a finding that the wife was not justified in living apart' from him. The evidence thus left defendant in the position of refusing to adequately support his wife himself while she was living apart from him with his consent and of refusing to. pay for necessaries furnished her on his credit. That a husband is liable under such circumstances see 2 Kent Com. 146; Schouler Dom. Rel. 68; Peaks v. Mayhew, 94 Me. 571; Mayhew v. Thayer, 8 Gray 172; Baker v. Barney, 8 Johns. 72; Lockwood v. Thomas, 12 Johns. 248; Frost v. Willis, 13 Vt. 202; Walker v. Laighton, 31 N. H. 111; Dixon v. Hurrell, 8 C. & P. 717.
The exceptions are sustained, the judgment set aside and a new trial ordered.