Robertson v. Artz

C. B. Smith, P. J. This was a writ of error to the Circuit Court of Mercer County. Plaintiffs in error brought suit in assumpsit against the defendant in error and filed their declaration alleging that on the first day of July, 1889, Josephine Artz, the wife of the defendant, while living with her husband, was arrested on a charge of murder and placed in the jail of Mercer County, and that afterward in the month of August, 1889, she was removed to Elmira, Chemung county, in the State of Hew York, where the crime was alleged to have been committed. That the plaintiffs were employed by the said wife of the defendant to advise, counsel and assist her in regaining her liberty, and in defending her against the charge of murder, and that plaintiffs, at her request, rendered legal services for her, and furnished aid, and expended in disbursements in such case to the value of one thousand dollars. Avers that Josephine Artz was innocent of the charge and that the services of the plaintiffs and disbursements made by them were reasonably necessary for the protection of the life, liberty, comfort and health of Josephine Artz. That she had no money, property or means of her own, to pay for legal services, and for expenses in defending herself against said charge, and that the defendant, her husband, was abundantly able to procure the services of attorneys and defray the expenses of her defense, but refused to do so, or-to furnish her money or means to pay for the same. Plaintiffs aver further that they charged and relied upon the defendant to pay them for their services and disbursements in such a defense, which plaintiffs a ver were reasonably worth $1,000. By means whereof defendant became liable to pay said sum of money, etc., and has failed and refused to damage of plaintiffs in $1,000. The defendant filed a general demurrer to said declaration, and issue joined to the same. The court sustained the demurrer. Plaintiffs elected to stand by it, and thereupon the court rendered judgment against the plaintiffs for costs. The action of the court in sustaining the demurrer and rendering judgment against the plaintiff for costs, is assigned for error. The only question before us, is whether the declaration stated a legal and valid cause of action against the defendant. If the legal services and advances made to the wife under the circumstances stated in the declaration were necessary within the meaning of the law, then the declaration is good; if on the contrary they were not necessary then the declaration is bad. Upon the answer to this question in the affirmative we can entertain no doubt. Bishop in his work of Marriage and Divorce, Sec. 554, Vol. 1, says, “ Every wife, whatever the husband’s circumstances, is entitled to food and clothing to preserve her life and health, and to medical care and nursing when sick. And in general terms, necessaries are such articles of food, or apparel, or medicine or such medical attendance or nursing or such provided means of locomotion or provided habitation and furniture or such provision for her protection in society and the like as the husband considering his ability and standing, ought to furnish his wife for her sustenance, and the preservation of her health and her comfort.” Parsons in his work on Contracts, Vol. 1, page 350, says: “ If we suppose a case where a wife perfectly incapacitated by infirmity of body and mind, from making any contract at all, is supplied with necessaries by one who finds her driven from home and ready to perish and who now comes to her husband for indemnity, we can not doubt but that he would recover.” In Shepard v. Machoul, 3 Campbell, 326, Ellenborough said : “ If she (the wife) was turned out of doors in the manner stated, she carried along with her credit for whatever her preservation and safety required. She had a right to appeal to the law for protection, and she must have the- means of appealing effectually. She might, therefore, charge her husband with the necessary expense of this proceeding, as much as for necessary food and clothing.” In the Wisconsin case of Warner v. Heiden, cited, 28 Wis-517, the court, after saying that the defendant had withdrawn from his wife that protection which it was his duty to give her, and had put her in custody without cause, uses this significant language: l£ It is idle to say, that under the circumstances of this case, legal advice and assistance was not necessary for her protection and safety. And the same being necessary, and having been rendered by the plaintiffs, all of the courts hold the principle, and we now add another to the list, that he must pay therefor.” We think the foregoing cases sufficiently illustrate the general rule as to the liability of the husband for legal services rendered under the circumstances related in the declaration. In support of and in harmony with the cases from which we have quoted and which held the wife may recover for necessary legal services, we cite the following cases: Wilson v Ford, 37 Law Journal Exchequer, 60; Turner v. Rooks, 10 Adolphus & Ellis, 47, also reported in 37 E. C. L. R. 35; Brown v. Ackroyd, English L. T. E. R. 214; Ottawa v. Hamilton, 3 E. L. R. (N. S.) C. P. D. 393; Rice v. Shepard, 104 E. C. L. R. 332; Stocker v. Patrick, Law T. R (N. S. ) Vol. 29, 507; and the following American cases also: Conaut v. Burnham, 133 Mass. 503; Morris v. Palmer, 39 N. H. 123; Sprayberry v. Merk, 30 Georgia 80; Porter v. Briggs, 38 Iowa, 166; Paxton v. Johnson, 65 Iowa, 285; Gosset v. Patton, 23 Kansas, 341; Handy v. Stockbridge, 62 Maryland, reported in Central Law Journal, Vol. 9, 253; Ray v. Adden, 50 N. H. 82; Clyde v. Pavy (Iowa), 36 N. W. R. 883. It is insisted by defendant in error, however, that the Supreme Court of this State has adopted a different rule, and held that legal services and disbursements rendered to a wife are not such necessaries as can be charged to the husband, and we are referred to the cases of McCulloch v. Murphy, 45 Ill. 256, and Dow v. Eyster, 79 Ill. 254, as supporting this view. We do not think either of these two eases support the contention of defendant in error. In the case of Murphy ats. Mc-Culloch, there had been a suit of divorce, brought by Murphy’s wife against him. The court allowed Judge McCulloch, her solicitor, $50 fees, as,a part of the wife’s temporary alimony. This sum was paid to the attorney and at a subsequent term another application was made by counsel for a further allowance, but in the meantime plaintiff had gone back to her husband and was living with him. The court denied the claim for further fees under the circumstances. The case of Dow v. Eyster, was a suit brought by Dow against Eyster, to recover from him for legal services, rendered for the wife of Eyster in a suit brought by her against her husband for divorce. During the pending of the divorce suit the court allowed the wife alimony and also made an order on the defendant to pay Dow, the wife’s solicitor, $50, which was paid him. On the trial of that case the wife was awarded a decree of divorce, but the decree provided that no other alimony (except what had been before then paid in money and property) should be allowed. The court had before allowed Dow $50, and the court held that that action was final and conclusive. The court holds that if Dow had not then been satisfied with that amount, he should have asked the court for a further allowance while the whole matter was pending before the court with full power to adjudicate on all questions between the parties, including the power to allow for legal services rendered the wife in that suit. We think the court very properly held that Dow could not again come and begin an original suit in a court of law to recover more attorney’s fees and again put the defendant to retry the question settled in the divorce proceedings, and that such a proceeding would be repugnant to every principle of justice. It is also said in that case that an action at law can not be maim tained against a husband by a solicitor who may prosecute or defend an action for divorce for the wife. It will be seen here that the court limits this restriction against the right to bring a suit at law for legal services rendered to the wife, to services rendered in divorce proceedings. Ueither of these cases give any color to the claim of defendant in error that legal services rendered the wife may not be necessaries to her which may be charged to the husband, but, on the contrary, they both expressly recognize such to be the law. But both cases very correctly hold that the solicitor should make his demand for the legal services rendered to the wife in the divorce suit, where the court has full power and jurisdiction over the whole matter, and can do full and adequate justice to all parties and their solicitors without the trouble, expense and vexations of suits at law. Under our practice and under our statute the courts have always exercised jurisdiction over the question of solicitors’ fees in divorce cases, and adjudicated upon the rights of all parties, and have always allowed or disallowed solicitors’ fees for the wife, as justice and equity required. The same course was followed in the two cases relied upon by the defendant in error. But where the fees sued for, as in this case, were not earned in a divorce or other alimony proceeding, but in a criminal proceeding, where the court had no control over fees and no jurisdiction in the matter, then such suit must of necessity be an original proceeding in a court of law and upon the implied assumpsit. Otherwise a legal right to demand payment would be defeated for want of proper form of action. An examination of most, if not all, of the cases relied on by the defendant will show that they grew out of divorce suits, and that the solicitors’ fees were settled in the principal suit. But while this mode of adjustment was adopted, the great preponderance of authorities expressly recognize the necessity of the wife to have the assistance of counsel, and compel the husband, by direct and summary proceedings, to pay for such services. In addition to the averments in the declaration (which we hold to constitute a good cause of action) counsel for defendant in error inform us, in their printed argument, that “ Josephine Artz was taken from the house and protection of her husband by the strong arm of the law, and removed to New York to answer to the charge of having poisoned her former husbandand they further declare in the argument that “there was no.legal obligation resting on the husband to furnish (to her) the means of defense;” and this “ under the broad principle that no man shall he made debtor without his consent.” We make these extracts from defendant’s argument, not for the purpose of construing the declaration in the light of them, but for the purpose of allowing defendant himself, through his counsel, to state his own position, monstrous, inhuman and barbarous as it is, and without support in reason, justice, law or humanity. What last extremity of necessity to this wife could have been greater or more urgent, short of torture itself, than there was upon her, seized by the officers of the law by her own fireside, at her own house, under her husband’s roof, where it was her duty and her right to be, and carried to a foreign State under a charge of murder and thrust in prison, without friends or money, and alone and charged for her life. Then, if ever, was it her right to feel the strong, supporting arms of her husband about her, and then it was his highest duty and honor to keep his vows to protect his wife, and defend her with his presence, his counsel and his money. The decoration avers that he was abundantly able to defend her and employ counsel for her, but would not. It is admitted that medical services may be necessary for the wife to restore her to health or save her life, and why are the services of an attorney not equally necessary to save the wife from the dungeon or the scaffold? And the king shall answer, and say unto them: “ Depart from me, ye cursed, into everlasting punishment' * * * for I was a stranger and ye took me not in, * * * sick and in prison, and ye visited me not.” This was the fearful ma'ediction hurled by the great Lawgiver in his righteous indignation against those who would not visit even the stranger who was sick and in prison. If this be the fate of the stranger toward his fellows in prison and distress, what shall be said of the husband who turns a deaf ear to the appeals of her whom he has sworn to cherish, love and protect, through good and evil, when her life is at stake? She was not absent from her husband or her house voluntarily, so as to place her in any default in respect of her duty to her husband. The presumption is that she was innocent of the great crime with which she stood charged. The declaration avers she was innocent, and the demurrer admits the fact, and she was entitled to be defended, and it was the bounden duty of her husband, to the extent of his ability, to defend her, and when he failed in that duty then she had the legal right to employ all reasonable and necessary agencies, including that of counsel, for her defense, and charge her husband’s estate with such necessary and reasonable expenditures. Counsel err in contending that the rule of law “ that no man shall be made another’s debtor without his consent” “is a broad, universal legal principle.” It is the duty of the husband to support and maintain his wife and children, to provide them a home, to feed and clothe them, to care for them when sick, to protect them Jiving and to defend them in their persons and character, and in general to do and furnish for them in all respects what is reasonable and appropriate for them to have and enjoy, according to his station in life and his ability to furnish such things. The law never has nor never can sit down in order and give a name to a limited schedule of things which shall be necessary for a wife or child. The list must be left open and enlarged or limited as occasion shall require. When, therefore, the husband being able to furnish these necessary things for his wife or children and neglects or refuses so to do, then he may be made debtor without his consent to any man who will furnish the necessary things to his wife and children. We are of opinion that this declaration is good and that the court erred in sustaining the demurrer and in rendering judgment against the plaintiff for costs. The judgment will be reversed and the cause remanded. Reversed and remanded.