188 Pa. Super. 72 | Pa. Super. Ct. | 1958
Opinion by
. Lavinia Pinto, the wife-defendant, bought a mink coat at plaintiff’s Philadelphia store; the sale price, including tax, was $3,316.50. She had a charge account with Gimbels, which however had been used as a convenience in making current family purchases, but for no unusual transaction such as this. She told plaintiff’s credit man that her husband had authorized her to buy the coat and would pay for it. She
The jury upon a charge of the trial judge which adequately submitted the question of the husband’s liability for the purchase as a “necessary”, found against him on that ground. A coat for a wife is a necessary, and in this case notwithstanding our first reaction, from an examination of the record we are now of the opinion that the coat here, although mink, was properly classified as a necessary by the jury under the unusual circumstances of this case.
In the light of the verdict these are the circumstances which must be taken as established in addition to the facts recited above: The defendants were on the verge of a separation. And on October 27, 1954, the day of the purchase, the husband left his wife in the marital domicile, a dwelling at 128 Powell Lane, Upper Darby, which was owned by them by entireties. The
Because of the intervening death of Judge Crumlish, the rules for a new trial and for judgment n.o.v. Avere disposed of by Judge Sloane speaking for the court. He had sat with Judge Crumlish at the argu
The alleged perjury of the wife at the trial, was one reason stressed at the argument; the other, bearing on the rule for judgment n.o.v., was the contention that the coat was not a necessary. In denying a new
The court also properly disposed of appellant’s rule for judgment n.o.v. The circumstances characterize the coat as a necessary and charge the husband with liability for its cost. As far as disclosed by the record, the dwelling owned by defendant by entireties is the only property to which the plaintiff can look for satisfaction of its judgment. The wife in her testimony on depositions stated that her motive in recanting her testimony was to save her home; it is clear that she hoped to accomplish this, and still keep the coat which she dishonestly obtained. It is of significance that beginning with the day folloAving the purchase of the coat she has consistently refused to surrender it to the plaintiff. At the argument it was said by plaintiff’s counsel, without contradiction, that even after this suit was brought he offered to accept a return of the coat, and the offer was refused by the wife. Moreover,
Where the action is against a husband for alleged necessaries furnished to his wife, the court may “assume the responsibility of saying authoritatively to the jury that the goods purchased by the wife and charged to the husband were not ‘necessaries’. In a very clear case, the court would be justified in so doing, but, ordinarily, it is a question of fact for the jury.” Levison v. Davis, 212 Pa. 148, 61 A. 819. The concept is not restricted to bare necessities of life; on the other hand the weight of authority is that necessaries “include those things needed and suitable to the rank and condition of the spouses and the style of life they have adopted. What necessaries are in kind and amount is to be determined in each case by the means, ability, social position, and circumstances of both husband and wife”: 26 Am. Jur., Husband and Wife, §375. In determining the character of clothing which may be furnished to a wife as a necessary, the pecuniary circumstances of the husband and his social position are relevant facts. Breinig v. Meitzler, 23 Pa. 156.
The defendant-husband had been president of Pinto Trucking Company for a number of years al
In plaintiff’s complaint it was alleged that “Plaintiff sold and delivered to defendant at their oral instance and request; one natural mink coat . . That allegation not denied by wife-defendant Avas read into evidence as admission of her part. At the trial the wife and husband each sought to hold the other solely responsible for the purchase but the credibility of both was for the jury. Both the facts, and the legal prin
Under the Act of April 11, 1848, P. L. 536, 48 PS §116, this action was properly brought against both husband and wife and from the facts of this case, liability of the wife resulted when she allowed her account to be charged with the purchase. Boggs and Buhl v. Kamons et al., 109 Pa. Superior Ct. 487, 167 A. 373. Under the testimony the above Act of 1848 gave the creditor the right to proceed to judgment against both husband and wife. And the defendant husband is liable even though separated from his wife at the time of the purchase. Llewellyn v. Levy, 163 Pa. 647, 30 A. 292; Bickerton et ux. v. Tanney, 167 Pa. Superior Ct. 219, 74 A. 2d 760.
We find no reversible error in this record.
Judgment affirmed.