80 Iowa 243 | Iowa | 1890

Rothrock, C. J.

1. Husband and wife ¡Rability for family pleading ana proof: — I. At the time the alleged medical services were rendered, the defendant was the wife of David Hoover, and it is claimed by the . . plaintiff that the services were a necessary J . , ../ expense, and chargeable to both the defendant and her husband, and that they are jointly ana severally liable therefor. The defendant answered the petition by a general denial. The evidence shows that the plaintiff is a physician and surgeon who resides at Iowa City in this state; and that the defendant, who resides at Walnut in this state, was sick ; and that David Hoover, the defendant’s husband, on or about the twenty-third day of October, 1884, sent a telegram to the plaintiff to go to Walnut and treat the defendant professionally ; that he made the journey, and consulted with the local attending physician at the bedside of defendant, and afterwards had numerous consultations by letter with the local physician.

It is provided by section 2214of the Code that “the expense of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” The court instructed the jury as follows : “ 3. The burden of proof is upon *245tlie plaintiff to establish the allegations of his petition by a preponderance of the evidence. If you find from the evidence that the plaintiff rendered medical services to defendant at the request of defendant or her husband, and that the defendant’s condition was such that it was necessary and proper for her to have such attendance and services, then, in that case, the husband and wife both would be liable to plaintiff jointly and severally, that is, they would be liable both together, or either of said parties would be liable for same; and plaintiff, to recover same, could sue both of said parties jointly, or either of them alone, and recover for same.” This instruction is claimed to be erroneous, and we think the position of counsel for appellant is correct. The only question under the statute is, was the claim of plaintiff a family expense ? That it was a family expense seems to be conceded by the instruction, and there can be no doubt that thus far the instruction is correct. But the question whether it was a necessary and proper family expense is not involved in the case. The instruction is in this respect contrary to the statute, as construed by this court. Smedley v. Felt, 41 Iowa, 588; Marquardt v. Flaugher, 60 Iowa, 148. The fact that it was alleged in the petition that the expenditure was a necessary family expense did not require that the plaintiff should prove that averment. A party plaintiff is not required to prove the redundant or unnecessary averments of his petition.

II. It is claimed that the verdict is not supported by the evidence, and we think that this point is well taken. There was really no defense to the action.

2 appeal- ' fésfprintíng III. The record is presented to us in some seven different printed abstracts and arguments. .The appellant’s abstract and assignment of errors were c^efec^ve- Appellee’s counsel discussed this in his argument. Then appellant amended, and there are arguments and reargnments, besides one or more motions. We think the record, as at last presented, is sufficient, and that we have jurisdiction to *246determine the appeal. But the defects in the original abstract were the cause of the printing of about ten pages of unnecessary abstract and arguments, and ten dollars of the cost of the appeal will be taxed to ajopellant. The judgment of the superior court will be