61 P. 476 | Cal. | 1900
Among other things, it is alleged in the complaint that plaintiff has continuously, since the first day of June, 1894, at the instance and request of defendant, kept and cared for the insane wife of defendant, providing for her suitable boarding, lodging, clothing, washing, medicine, and medical and other attendance, the reasonable value of which is twelve dollars per week, and one hundred dollars per year for clothing. In the answer all the material allegations of the complaint are denied, and in addition it is alleged that during all the times in the complaint mentioned defendant has been able, willing, and anxious to provide for his said wife at his own home in California, and on the 28th of June, 1894, demanded of the plaintiff that it deliver to him the person of his said wife, and that plaintiff, without cause or excuse, refused to comply with said demand.
The court found as a fact that plaintiff had kept and cared for the wife of the defendant as alleged, except that the court did not find that such service was rendered at the request of the defendant, or that he promised to pay its reasonable or other value. It found, also, that defendant "on the twenty-eighth day of June, 1894, desiring in good faith to care for his said wife elsewhere, demanded of plaintiff, at its institution in the city of St. Louis, that said plaintiff forthwith deliver to him said insane wife; that said plaintiff, without legal cause or excuse, refused to comply with said demand, and, against the will of defendant, has since retained the said wife of defendant in its custody." Judgment was for defendant.
Upon a motion for a new trial it was contended on behalf *20 of plaintiff that there was no proof that the offer of defendant to provide for his wife elsewhere was made in good faith. This contention cannot be sustained. The burden was upon the plaintiff. Some suspicion was cast upon the motives of the defendant, but it cannot be said that there was no evidence tending to show good faith.
Section 174 of the Civil Code provides that when a husband fails to make adequate provision for the support of his wife, then (except in certain cases) any person may supply her with necessaries and recover the value thereof from her husband. Whoever supplies such necessaries must, in order to recover, show such neglect on the part of the husband. That was not shown in this case.
The plaintiff was not injured by the refusal to admit in evidence the judgment rendered in the United States circuit court. Had it been competent evidence of all that plaintiff claims for it, its case would not have been aided. Admit all these facts and it still has no case.
Judgment and order affirmed.
McFarland, J., and Henshaw, J., concurred.
Hearing in Bank denied.
