*1 Stromsted, In the Matter of the Estate of Florence S. Reiss, Deceased: Todd and Richard V. R. Stromsted co-personal representatives of the estate of Florence Stromsted, deceased, Appellants,
S. Hospital Sisters, Michael St. Franciscan
Respondent. Supreme Court Argued September 30, No. 79-1796. 1980. 25, 1980. Decided November reported (Also 226.) in 299 N.W.2d *2 appellants For the by there were briefs Richard V. Ludwig Reiss and & of Milwaukee, argu- Reiss and oral by ment Richard V. Reiss. respondent
For the there was brief J. Loma Granger Purtell, Purcell, Burroughs, C., Wilmot & S. Milwaukee, argument by Granger. and oral Loma J.
BEILFUSS, appeal judgment C. J. an This is from a against entered the Estate of Florence S. Stromsted favor Hospital. judgment Michael St. This ordered personal representatives of the Estate of Florence S. Stromsted to Hospital to St. Michael the sum of $1,191.95 in satisfaction of a claim filed against entry appealed the estate. from the The estate judgment. of this mat- appeals The court of certified the 809.61, pursuant ter to this court to the terms of sec. accepted Stats. We thereafter the certification argument ordered that this matter be scheduled for oral conjunction Sharpe Furniture, Inc. with case of Buckstaff, (Nov. 25, 1980) Wis.2d N.W.2d September 20, 1978, Stromsted, On Florence S. decedent, Hospital. was Michael At the admitted to St. admittance, time of her an authorization she executed However, mistakenly listed the treatment. this form Stromsted, name of as the the decedent’s Thor given. patient for whom the authorization was Aside *3 improperly form, from this there executed authorization agreements agree- express existed no written or other hospital ments the decedent or between the either charges. her husband to The decedent remained charge hospital September 27, in the until 1978. The period hospitalization $1,166.95. this of totaled hospital The decedent was admitted to the for a second pronounced time on December She was dead 1978. upon charge hospital. A arrival at the was billed $25 for this service. January 4, 1979, hospital
On in filed its claim probate Estate of Florence Stromsted with the court S. $1,191.65. personal representa- in the amount of The objected ground tives to the claim on the de- cedent’s husband and not decedent was liable for the expenses. cost of these medical parties appeared The before circuit court on Oc- hearing, hospital tober At the 1979. counsel for the position took the that the decedent’s estate was on liable “implied an basis of contract.”1 Counsel argued under estate not liable that married woman is implied principles rendered contract for medical services could to her. The trial court held that the estate be legally services bound for the value of the medical judgment entered as noted above. aspect requires
This
us to examine another
review
Sharpe Furniture,
Inc. v.
the necessaries doctrine.
In
Buckstaff, supra,
doc-
held that
the necessaries
was
component
of the common
trine continues as
viable
necessary
may
that a
law and
husband
be held liable
by
purchased
a wife
items
his wife on credit. Where
necessary item,
agreement
purchase a
binds herself
by operation of
case
her
law. This
husband is also bound
requires
nature of the
the court to focus on the
of the wife for
or items which
services
agree-
an
in the
been rendered or delivered
absence
im-
an
the terms of
ment which would bind
under
Therefore,
question presented
plied-in-fact contract.
for necessaries2
may
held liable
is whether a wife
implied
im-
precise
which is
this
contract as one
The
nature of
subject
implied-in-fact
plied-in-law
has been the
or one which is
throughout
progress
some confusion
this case.
regard.
clearly
position
fn.
its
[See
4]
has never
delineated
markedly
implied-in-law
quasi-contract
differs
implied-in-fact.
implied-in-fact
A contract
from a contract
agreement
agreement
an
or from an
as evi-
arise from
denced
which show a mutual
intention to
circumstances
contract.
Hayward,
302, 306-07,
Kramer v.
the absence expressly may he not found to be liable where has be agreed pay for items or services.3 had no The rule was that wife common law Indeed, re- the common law for household necessaries. legal recognize capacity of married women fused History general. generally Maitland, in See Pollack & English 1898), (2d Law 404-05. The fiction of ed. merged legal in that the husband as wife’s existence justification for this social status. was offered as the Jahn, First Nat. Bank v. 179 See Wisconsin Wis. (discussion of common law (1922) N.W. statutory light law). in Therefore the of Wisconsin agree- married woman could not her be bound ments. expression principle in
This common law has found Padden, 42, 86 In Stack v. Wisconsin case law. Wis. (1901), that a married woman this court held N.W. by a at for neces- could not bind herself law case, physician a married In that a sued woman saries. to her and value of services rendered for the reasonable argued physician woman that married son. separate if she liable for has be held necessaries argument rejected Id. at 43-44. The court estate. part no on the of the wife. found 1 of the 1921 was thereafter Ch. sec. Laws 6.015, 1921,4 created which enacted. This law sec. Stats. provided: equal rights. (1) to have shall as men “Women Women rights in privileges under
the same the law aspect Sharpe Buckstaff, supra, Furniture, Inc. v. this in length repeated law of necessaries will here. argued requires common has law altera only changing standing light so tion social of women in ciety. principle of constitutional law been No has asserted controversy. arguments issue, In the absence of briefs and on this any potential we decline to address constitutional claim. presently 766.16, codified at sec. This section Stats. *5 suffrage, contract, exercise of choice freedom of voting purposes, jury holding residence for service, of- fice, holding conveying property, custody and care and children, respects.” and in all (Emphasis other added.) operated 6.015 disability Sec. to remove the common law of married respect women with to freedom of contract. construing In statutes, section of this court had occasion to write: says “When sec. 6.015 that ‘women shall same rights privileges under the law as men in . . free- . contract,5 dom of says, means what it and that is that
women shall be
personal
as free as men to make
con-
First
tracts.”
Wis. at 125.
Jahn,
Wisconsin Nat. Bank
supra,
granting
Sec. 6.015 had the effect of
to married women
the, legal capacity
respect
right
with
to the
to contract
grant.
which the common law refused to
6.015, Stats.,
open
terms
sec.
question
left
of whether,
in the absence of a
agreement,
contractual
married
woman could be held liable for necessaries
implied
virtue of a contract
years,
Over
law.
especially within
the context of
for medical ser-
vices, this court has often held that a married woman
liability.
had no such
Schmidt,
In Jewell v.
(1957),
her own in the absence of the establishment of such an per- between the wife and the rendering son service, wife, and not the *6 person is the expenses liable for such and the one en- titled to recover for them. [Cases cited.]” The Schmidt, rule of Jewell v. supra, ap- constitutes an plication principles of the necessaries doctrine to specific type a service, i.e., medical services. retaining legal The rule had immunity the effect of respect married woman with to contracts by necessaries which implied operation are of law. Jewell, Since the principle decision in liability that for medical by is services borne the husband and not repeated wife has been on numerous occasions. See e.g., Hospital Luther Garborg, v. 462, 71 Wis.2d 238 (1976) ; Seitz, N.W.2d 529 v. Seitz 35 Wis.2d 295, 151 (1967); N.W.2d Fischer, 86 Fischer v. 31 Wis. 293, 309, 2d 142 (1966); Heritage Fee N.W.2d 857 Co., Mut. Insurance 269 N.W.2d (1962); Puhl v. Milwaukee Co., Automobile Ins. 8 Wis. 343, 349, 2d (1959). N.W.2d 163 hospital challenges
The impose this rule and seeks to liability theory direct on quasi-cont the wife on a argued ract.5 It that, is purpose whatever was served hospital’s brief no clear contains statement as to whether theory recovery premised upon implied-in- its is one a contract implied by operation fact a contract (quasi-contract). of law In deed, counsel for question not did answer a direct argument inquiring oral covery as to which one of the two theories of re hospital’s argument formed the for the basis on review. We hospital argues must assume that the on the basis of a implied-in-law. contract Schmidt, supra, rule of Jewell v. hospital argues which the overrule, prohibit we must does a being theory woman from held implied-in- liable on a of a contract Although fact. the rule of Jewell v. Schmidt is couched in terms of “express” contract, an “there is no difference between an implied contract and an contract; [in all fact] contracts are ex press contracts. But there are expressing modes of as different Corbin, Contracts, p. sent.” any see. event, In we (consisting examined the record in this case hospi- of several purpose old rule, common is outdated law society com a become where women have familiar theory ponents professional A and world. the business legal argued, and incapacity, is is anachronistic place society. does not have a modern agree argument. hospital’s We with the essence of the Sharpe Buckstaff, supra, In Furniture, Inc. this court a his noted that nature of husband’s family’s obligation essentially an aris- was necessaries ing implied as a matter of law between as a proves the husband and creditor the creditor. When proper commodity or service suitable which reasonably family it has been for the needed *7 supplied family payment for to and used the without item, he has demonstrated the elements unjust recovery quasi-contract theory for under a of Seegers Sprague, supra, v. enrichment. Wis.2d See support party as a liable for the 1004. against party family, proper is viewed as the liability be enforced. whom should duty legal The woman shares with her husband 767.08, is family. There support of See Stats. sec. unique nothing of the married woman about status theory being on a prevent her liable it would from that obligation. that hold quasi-contractual We therefore of a arising obligations wife, out addition may lia- obligations, held implied-in-fact contractual obligation man- implied-in-law in a contractual an ble liable will be held which her husband ner similar to through testimony of the evidence into records introduced tal entirely accounts) patient inade- it hospital’s director of tend would or circumstances which quate those actions to establish implicit to con- parties an mutual intention had show tract. Sharpe as set Furniture, forth in Buckstaff, Inc. v. su-
pra. prior sug- To the extent that our decisions have gested they otherwise, are overruled. convinced, are however, We that a husband joint wife should bear this aas and several ob- ligation.6 seeking A creditor to recover under proceed against rule necessaries must the husband primarily responsible party. as the He thereafter party secondarily seek satisfaction from the wife as a quasi-contractual obligation. liable on the Although shape quasi-con- in form it takes the of a obligation, obligation tractual the essence of the of hus- band and wife under the doctrine of necessaries is the support family. Sharpe and sustenance of Furniture, supra. obligation Inc. Buckstaff, This extends to both spouses, obligation support however, the extent of the dividing is not determined the amount of the house- hold liabilities in half. Various factors are considered in duty, the measurement of this and the income and earn- ing capacity spouses aspect constitute central any support. rule which seeks to assess Balaam Balaam, 20, 25, 187 N.W.2d Cf. appropriate quasi-con- We therefore deem to fix obligation light general tractual necessaries income-producing patterns *8 family. contemporary of the during past years, although We note five mar- gains ried women have made substantial the labor general they force, as a matter remain behind their mar- riage partners income-producing as an element of the 6 Compare Adams, Cooke (Miss. 1966). also 183 See So.2d 295 Jersey Baum, Shore Estate Medical Center v. 417 N.J. A.2d 1003 family.7 typically principal as the income- producer having family, pri- of the must be viewed as mary liability for the necessaries of household. To his satisfy extent to the husband is unable his ob- ligation regard, in this the creditor seek satisfaction from the wife. case, hospital may impose
In this direct lia bility charges on Florence services Stromsted for the September rendered either on December figures upon The most recent com labor statistics are based ' piled although married that, These 1978. statistics indicate (cid:127)women make welfare substantial contributions to the economic family family, only percent wives accounted for about 26 average. yet published income on the This datum been as has not through Special but was obtained Force Stud the Office of Labor Washing ies, Statistics, Department Bureau of Labor of Labor in ton, figure published D. C. This last data corroborrated compilation average, which also that on con indicated wives percent family tributed about 26 “Labor income. See Force Participation Women,” Monthly Review, of Married Labor June 1977, p. 33. give We also note that recent labor statistics rise to the inference that a substantial number of married women remain average outside of the labor force. As an annual about percent age twenty part of all women over the were not the labor Statistics,” Monthly force. “Current Labor Re Labor view, September 1980, p. 72. hospital argues that, respect without necessaries, estate 859.49, Stats., sec. allowed the trial court to personal representatives order the charge for ser $25 vices expense rendered on December 1978 as an of the dece provides: dent’s last illness. Sec. 859.49 expense “Last illness and spouse. funeral of deceased The rea- expense sonable of the last may, illness properly and funeral if presented, paid by personal representative of the estate of a spouse paid deceased so if shall proper be allowed as a ex- penditure though surviving spouse even could have been held expense.” liable for the permissive The terms of this statute are in nature and do not admit of the construction which the place upon seeks to it. *9 20,1978. express9 contract, In the a absence of an credi- may theory quasi-contract. tor a a sue wife based on being A married be woman cannot viewed immune as suggested from such suit a as in our decision in Jewell v. Schmidt, (1957), 83 N.W.2d progeny. and its However, where the creditor seeks impose liability provided for necessaries that been family of the married the married woman or herself, regarding woman we that believe considerations support nature require the credi- tor to first seek satisfaction from the husband as party primarily liable. judgment
The of the trial court held the which estate liable for the medical services rendered to decedent must be reversed. no There is indication the record hospital, prerequisite against that the recovery as estate, unsuccessfully sought to obtain satisfaction reason, from the decedent’s husband. For this the claim hospital must be denied. By Judgment reversed. Court. — S, ABRAHAMSON, SHIRLEY (dissenting). J. record in this case is devoid almost of facts. Yet the majority governing fashions a new rule I necessaries. dissent. only
We know that andMr. Mrs. Stromsted were hus- wife; together they living band and that were at the time Mrs. Stromsted consented to and received medical services; suicide; that Mrs. Stromsted committed that against estate; filed claim asserting estate refused to claim the hus- liable, band should be not the estate. doWe not know anything past dealings about between de- doctor, wage earning cedent and responsibilities or the to which we refer includes all those con implied-in-fact. tracts Corbin, which Contracts, See 1 supra, pp. 18 and secs. 39-60. *10 fi- respective of the or her or the decedent or earning nancial the decedent abilities of resources record, light I paucity husband. In hearing, for a would remand the case to the trial court court findings fact, by for the trial of and for decision known, on the the estate’s facts.1 the facts are When supra Schmidt, majority that rule of “The Jewell states being liable prohibit held . not a woman from . . does [married] theory implied-in-fact.” p. How on a ever, quate of a n. 5. contract “entirely inade the the is court’s statement that record tend to which would establish those circumstances actions or con implicit parties intention to to show that had mutual the an differently tract” the treat men indicates that court continues to determining purposes there married for whether women from was a implied If, example, the a man enters contract fact. emergency hospital signs treatment ward of the and a to consent case, form in standing facts as the instant hold on these the court would to alone that the man is bound an contract pay, implied-in-fact that is the would contract. The court find an court would promised male reason that the that circumstances show pay hospital current services rendered their price. (Second) Contracts, Restatement Tentative Draft No. (1964), prior cases, contrast, Section Illustration In1. under our apparently majority which are not opinion, a reversed if signs married woman enters the and treat consent to ment form case, standing as in the instant these facts would alone justify holding not implied-in-fact her liable under an contract. prior Under our cases the presumptively married woman con is tracting agent on her purchase husband’s as credit his contracting necessaries and personal not liability. on her Applying presumption determining this whether the wife was implied liable under a purchase in fact for the false teeth, the court wrote: “It is contended that and the [seller] understood [wife] from the course of the ordering, transaction of providing, and de- livering these that teeth personal was an individual and sale personally she [wife] that assumed to for them. The facts circumstances do not True, sustain this claim. personal dealings had no [seller] with the . . . But husband. purchased if the articles were under circumstances indicating they supplied were her in the usual manner as necessaries for which a husband is liable question as such. The is, plain The result can be determined. Sharpe Furniture. Co. once the facts are known. Cf. (1980), Buckstaff, N.W.2d Wis.2d concurring). (Shirley Abrahamson, J., S. agree law Sharpe, I the common explained in
As I
modi-
to be
governing
for necessaries needs
rule
in cases such
the court
The dilemma that
faces
fied.
drawing
treats
a rule which
is that of
as the instant one
serving
law
fairly
common
while still
the creditor
is,
necessaries,
effectuat-
function of the doctrine
majority
spouse.
sets
ing
needy
support of
economic
consider the
which does not
a hard and fast rule
any effort
spouses and abandons
circumstances of
*11
rights and the
the creditor’s
strike this balance between
duty
sup-
society
to
the
spouse and
to secure
of a
needs
drawing
may
rule
difficulty
port.
the
Whatever
rule
law,
apparent
the
is
in this area of the
v.
Sharpe Furniture,
Inc.
gender
In
based.
cannot be
(1980)
114, 125,
Buckstaff,
299 N.W.2d
my
concurring),
I
Abrahamson,
stated
(Shirley
J.
S.
grounds
public policy
objections
and
constitutional
on
lia-
placed primary
which
announced
to the rule there
gender-
The
upon
husband.
bility
the
for necessaries
secondary
impose
to
in this case
extended
based rule is
indicat-
negotiate
purchase
circumstances
under
the
Did the wife
appears with
ing
It
sufficient
to do so?
that she was authorized
affairs of herself
certainty
the dental
attended to
the [wife]
including
payment
family,
of such
the
of other members
paid
nothing
show that she
such
in the record to
is
There
bills.
Presumably,
then,
separate
she
funds or estate.
her
bills out of
payments
father. This is sufficient
for the husband and
made the
apprise
to
fact and he must be deemed
this
to
[seller]
upon
basis,
showed her relation to the
which
with her
dealt
Tenneson,
Clark v.
Wis.
N.W.
transaction.”
(1911).
Johnson,
also
267 Wis.
The creditor’s benefit be attained at a substan- majority’s tial cost to the homemaker. Under the formu- supported lation, a full-time homemaker who has family by contributing services, who has little or *12 property, no income or and to whom the husband owes duty support, guarantor becomes, the payment effect, in a of supplied necessaries to her her- self ings the and children. Our court has said that the earn- wage property earner are “his out of which duty support family” any has he his and funds payment expenses support belong left after to the wage earner, not to the homemaker. Rasmussen v. Osh- Savings kosh Asso., 611, & Loan 605, 35 151 Wis.2d (1967). N.W.2d 730 Thus without control over 150
“family”
made
assets,
is now
income or
the homemaker
family
homemak-
liable for
necessaries. And the full-time
himself)
protect
(or
er cannot
from
herself
imposed by
has
case. The court
this court in the instant
of necessaries
fashioned under the name of the doctrine
family expense stat-
remedy
a
creditor’s
similar to
in
utes enacted
several states.2
dependent
It
a
on
be that
hard and fast rule not
only
spouses
the economic circumstances of the
is
that is
in
faced
kind of rule
workable. Courts
other states
problem imposing liability
partners
with the
marital
on
have,
supplied
for necessaries
to one of them
like
which,
majority, adopted
type
rule
of hard
fast
majority rule, probably produces
like the
fair
result
2
majority
overemphasize
point
I
has
do not wish to
that the
remedy.
transformed
creditor’s
the doctrine of
into a
necessaries
probably
The doctrine
or
of necessaries
has never been an effective
satisfactory
enforcing
right
support
means of
has al-
ways,
reality,
been
more
a benefit to the creditor than to
needy spouse.
obligated
supply
The creditor
not
necessaries
generally recognized
family,
to the
and it is
creditors
supplied
needy spouse relying
collecting
necessaries to the
on
from the husband on the basis of the uncertain and troublesome
doctrine of necessaries.
The doctrine of necessaries has surfaced in Wisconsin in recent
years
frequent
type
two kinds of cases. The more
of case has
personal injury
been a
suit in which the issue is whether the mar-
ried
proper party
woman or her husband is the
to recover reim-
expenses
bursement of
provided
incurred for medical services
the wife. Baum v. Bahn Frei
Assoc.,
Mut. B. & L.
237 Wis.
117,
(1941);
I difficulties attendant this area of simple the law. A applicable ironclad rule to all fact regardless situations of the economic circumstances spouses may be desirable. I Nevertheless would decide the instant until case the trial court determines regarding the relevant facts the contract for services and the financial resources decedent and her hus- broadly already band. Rather than write in an area fraught difficulties, rely case-by- upon with I would deciding develop case determination to a means of how for necessaries in a modern household should be I before, shared. As said when facts are deter- mined, they plain. Sharpe, as were in the result I therefore dissent.