38 Mo. App. 344 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The plaintiff seeks to recover from the defendant the amount of a board bill, which he claims to be due him from the defendant for the board of defendant’s wife and minor child, from June 20, to July 14, 1888, and from September 12, to November 20, 1888. The defendant and his wife were not living together at the time. The defendant denied liability for the reason that, during the time his wife and child boarded at the plaintiff’s house, he furnished her with a reasonable allowance to pay board, and purchase other necessaries. There was no dispute about the fact that the plaintiff furnished the board, and it seems to have been conceded by the defendant, that the amount charged by the plaintiff was reasonable. The case was submitted to
“ 1. The court instructs the jury that plaintiff can recover for no board furnished the wife or child of defendant after October 27,1888.
“2. The court instructs the jury that if the plaintiff furnished board to the wife and child of the defendant in the expectation that the wife would pay therefor, and not on the credit of the defendant and with no intention to charge the defendant for such board, then the verdict must be in favor of the defendant.
“3. The court instructs the j ury that, if they believe from the evidence that,, at the time plaintiff furnished the wife and child of defendant the board sued for, the defendant furnished his wife means reasonably sufficient to provide herself and child with necessaries, including said board, then the plaintiff cannot recover in this action.”
The verdict and judgment was for the plaintiff, and the defendant has appealed the case. The defendant complains of the instructions and the action of the court in the admission of incompetent evidence:
The defendant’s counsel seems to regard the separation of the defendant and his wife as involuntary in its character, and he seeks to apply the law applicable to such a case. Hence he argues that the instructions given by the court are faulty, because the jury was not required to find, that the separation was caused by the fault of the defendant, in order to authorize a recovery against him. This is undoubtedly the law in cases of involuntary separation. In actions against the husband for necessaries purchased by the wife, while the parties are living together, the right of the wife to pledge the credit of the husband is presumed; but when there has been an involuntary separation, before the husband can be charged for necessaries furnished the wife, it must affirmatively appear tha,t the separation was caused by the misconduct of the husband.
When there has been a mutual separation between husband and wife, two things are necessary to relieve the husband from the payment of debts contracted by the wife for necessaries: First. The husband must make an allowance to the wife for her support, and the amount so allowed must be reasonably sufficient to furnish the wife with necessaries. The word “ necessaries ” would include board, washing, suitable clothing and medical attendance. Second. The allowance must be regularly paid. The mere agreement of the husband to pay the allowance does not relieve him of his legal obligations; nothing short of actual performance will suffice. Schouler’s Domestic Relations [3 Ed.] sec. 68. But in such a case, when the husband is sought to be charged with necessaries furnished to the wife, it devolves on the plaintiff to show either the inadequacy of the allowance, or a failure by the husband to pay. Schouler [3 Ed.] sec. 69.
“ 3. The court instructs the jury that the burden is on the plaintiff to show that the defendant refused or neglected to supply his wife with the means to pay their board. Unless, therefore, you believe that the defendant neglected or refused to supply Mrs. G-uhman the means to obtain board for herself and child your verdict should be for the defeudant.”
This instruction was faulty and properly refused, because it did not submit the true issue to the jury. The inquiry was not whether the defendant had furnished his wife with sufficient money to pay her board, but whether the amount was sufficient to supply her with all necessaries for herself and child. This
There was nothing objectionable in the second instruction asked by the defendant and refused by the court. It was substantially the same as the third instruction given by the court; therefore its refusal •does not amount to reversible errror.
The defendant also assigns for error the action of the court in overruling an objection made by him to the following questions, propounded by plaintiff’s attorney to Mrs. Gruhman.
“Q. Was thirty-five dollars a month sufficient to .support you?” The defendant objected because the question was “immaterial and incompetent.”
The question was improper and called for a conclusion, and, if such an objection had been urged, the trial court would have been justified in sustaining it.
On the trial, the divorce proceedings between the •defendant and his wife were read in evidence, and it .appeared that the court had decreed alimony to the wife amounting to thirty-five dollars per month. This suit for divorce was brought by the wife, and the decree for alimony entered long after the plaintiff’s debt •accrued. The defendant’s counsel insisted, on the trial, that the ascertainment by the court of what was reasonably sufficient for the wife’s support precluded the plaintiff from showing that a greater amount was necessary.
There is no rule of law, with which we are acquainted, that would sustain the defendant in this position. The plaintiff was a stranger to the divorce proceedings, and of course could not be bound by them.
Our conclusion is that the judgment is for the right party and ought to be affirmed. It is so ordered. ■