Glaubensklee v. Low

Gjreen, P. J, Lyman W. Low, a physician, brought suit against plaintiff in error in assumpsit, to recover the amount alleged in his declaration to be due him, u for necessaries for herself and family; medical attendance, advice and medicine furnished by him to and for herself and family.” The only plea interposed was non-assumpsit, and upon this plea issue was joined. The cause was tried by the court without a jury. The trial resulted in a finding and judgment for plaintiff for 8599.94, to reverse which judgment the defendant sued out this writ of error. By the evidence it was shown plaintiff was a practicing physician, and as such, furnished medicine to and attended the family of defendant many times from Hay, 1878, to Hay, 1885, the family during that period consisting of the defendant, her husband and several children. The husband died in 1886. Plaintiff’s book of account contained an account against the husband for this medical bill, the charges for professional visits and medicine were shown to be reasonable, and it is not insisted the amount recovered is excessi ve. This suit was brought and a right to recover was claimed by the plaintiff below upon the theory that the professional services of a physician and medicine furnished by him to a family, are “ expenses of the family” within the terms of Sec. 15, Chap. 68, Starr & C. Ill. Stat. p. 1279, which provides as follows: “ The expenses of the family and of the education of the children shall be charged upon the property of both husband and wife, or either of them, in favor- of creditors- therefor, and in relation thereto they maybe sued jointly or separately.” It is urged on behalf of plaintiff in error the trial court erred in admitting under the averments in the declaration against the objection of defendant the evidence introduced on behalf of plaintiff, first, because of the failure to aver that the medical bill sued for was a family expense, and that defendant became liable to pay it by operation of law; second, because in the declaration it is' averred the defendant is indebted to plaintiff, and by the evidence admitted it appears her husband in his lifetime contracted the debt sued for, and that it was charged to his account on the book of plaintiff. Doubtless the averments in the declaration could have been so framed as to more clearly and explicitly set out a cause of action under the section quoted, and if defendant had demurred an amendment would probably have been made removing any obscurity in the declaration in that regard; but inasmuch as issue was joined, upon which a trial was had resulting in a finding and judgment, unless the declaration failed to aver a cause of action, which the evidence admitted was relevant to prove, the objection can not be sustained, and we think the declaration was not so radically defective as to preclude the plaintiff’s right to introduce the evidence objected to. It is substantially averred therein that professional services and medicine were furnished by plaintiff to and for defendant and his family; these are family expenses, within the scope and meaning of the statute, for which the defendant as a wife,became and was legally liable to plaintiff; nor was this legal liability removed by charging her husband on the boobs of plaintiff with the same medical bill. The legal liability of the husband and wife for expenses of the family is joint and several, and a suit therefor may be maintained against either, or both. Hence, the mere fact that the husband is charged with such expenses upon the book of plaintiff does not deprive him of the right to maintain a separate suit therefor against the wife. In support of this view we find authority in Lawrence v. Linnaman, 24 Iowa, 80, and we cite this decision of the Supreme Court of Iowa because the section of our statute before mentioned is a literal coj>y of the statute in Iowa in force at the time of such decision; and the general rule is, when one State adopts a statute in force in another State, which has been construed by the courts of the latter, the act is adopted with the construction so given it. In the case cited above, the goods were sold to the husband, charged to him, and his note was given for the amount of the - account. Suit therefor was brought against the husband and wife; he defaulted and she defended, claiming that under these facts she was not liable, but the Supreme Court held she was liable, and say, in the opinion, the husband determines primarily what is needed. He buys, furnishes, contracts debts, all in his own name, for the support and welfare of the family. The wife’s name need not be known. His acts, agreements and promises are alike obligatory on both. The law does not contemplate the consent and action of both. This case is cited and the ruling approved by the Appellate Court in this State in Hudson v. King Bros., 23 Ill. App. 118, in which case the husband and wife were sued jointly for goods furnished the family and charged to the husband on the hooks of the plaintiff, and the wife was held liable therefor under the statute. We are satisfied that notwithstanding the fact that the husband of defendant below was charged on the book of plaintiff with this medical bill, the evidence introduced on behalf of plaintiff to establish the legal liability of the wife was proper and relevant in support of the averment which properly charged her separately with owing and being indebted to plaintiff for said medical hill, and the trial court did not err in admitting such evidence over the objection of defendant It is further insisted on behalf of plaintiff in error, that the Circuit Court erred in refusing to hold the following propositions to be the law, as requested on her behalf: 1. The court states the law to be, that if the medical services in the case were rendered in the lifetime of the husband of the defendant and charged to him, then the plaintiff can not recover. 2. That medical services rendered the family of Henry Glaubensklee, the husband of the plaintiff, and charged to him, are not such expenses of the family as will render the wife jointly or severally liable with the husband under the law. We have already expressed views adverse to the proposition contained in the first request, rendering further comment on it unnecessary, and we will proceed to the discussion of the second, which is copied literally from the record, and the words “ husband of plaintiff” therein are evidently not those counsel intended to use, but we will treat it for the present purpose as though “ defendant ” instead of and in the place of plaintiff, appeared. The contention of the plaintiff in error in support of the proposition contained in the second request is, that the professional advice and visits of a physician to a family are not embraced in the language, “ the expenses of the family,” used in the statute, but that those words, properly construed, mean such expenses only “as are incurred for, on account of, and to be used in the family.” “That the thing for which the expenditure is incurred should have been actually used, or kept for use in the family;” and, therefore, professional advice and services of a physician, not being a thing used or kept for use in the family, the expense incurred for such advice and services was “ not intended to be one of the expenses of the family, for which defendant, as a wife, became liable under the said clause of the act.” In support of this position counsel cite three cases: Van Patten v. Krueger, 11 Ill. App. 627; Fitzgerald v. McCarty, 55 Iowa, 705; County of Delaware v. McDonald, 46 Iowa, 170. We have examined the-opinion in each of these cases, and in neither of them find authoi'ity sustaining the construction here contended for. If, as must be conceded, expenditures made or. debts incurred for food, raiment, shelter, and even medicine, for the family, are for the “ expenses of the family,” as those words were intended to be understood by our Legislature, it is difficult to find any good reason why a debt incurred for professional skill and advice, employed in directing the proper use of a remedy to alleviate the suffering, cure disease, and restore the health of members of the family, would not be one of the expenses of the family within the meaning of the act; and we find Iowa cases in which a much broader application is given to these words than would he required to support the latter construction. In Fitzgerald v. McCarty, 55 Iowa, 705, the court say, “It is the expenses of the family which, under the statute, are chargeable to both husband and wife. This implies, we think, the expense which has been incurred for something used in the family, kept for use, or been beneficial thereto.” See, also, Smalley v. Felt, 41 Iowa, 588; Marquardt v. Flaugher, 60 Iowa, 148. That the debt incurred for the professional services of plaintiff below was one of the expenses 'of the family for which defendant -was legally liable, we have no doubt; hence the proposition contained in said second request was incorrect, and the trial court did not err in refusing to hold the tame to be the law; and having thus disposed of all the questions submitted to ns for determination, we need only add that no error appears in this record requiring the reversal of the judgment below, and the same is affirmed. Judgment affirmed.