Pritchard v. Bigger , 288 Mich. 447 ( 1939 )

Defendant Andrew Bigger married Emma Bigger, the mother of plaintiff Helen Pritchard, some 53 years prior to the commencement of this action. Bigger, a sailor on the Great Lakes, would leave his home in Bay City early in the spring and generally return sometime in December, unless employed at the close of navigation as a watchman on board a ship when laid up in the winter. In 1927 he left his home in Bay City and was not seen again by plaintiff, who is his stepdaughter, until after her mother's death in 1936. Mrs. Bigger for some time was in very poor health, and her only means of livelihood was selling flowers on the streets at night. During this time she lived in her home, which she owned jointly with her husband. Mrs. Bigger's physical condition finally became so bad that plaintiff was obliged to take her into her home, where she was cared for until her death. Plaintiff lived on a 10-acre farm near Elwell in Gratiot county with her invalid husband, who was able to work only a few hours each day as a caretaker of a cemetery.

Mrs. Bigger, describing herself as the surviving wife of Andrew Smith Bigger, on August 15, 1935, conveyed the home in Bay City to plaintiff, the consideration being that plaintiff was to care for the grantor during the remainder of her life, the deed providing that Mrs. Bigger was to have as good a burial at her death as conditions would warrant. The deed also recited that the consideration included the payment of bills for doctors and nurses, if any, together with any other expenses required for the proper care, comfort, and support of the grantor. Mrs. Pritchard did all that was humanly possible to provide for her mother's comfort and administered to her physical wants to the best of her ability under difficult circumstances, the mother's physical condition being so distressing that we do not repeat the details. Upon Mrs. Bigger's death, plaintiff and her husband mortgaged their own home in order to pay the expenses of a modest funeral for the mother.

Plaintiff sued the defendant for the reasonable value of the necessary food, clothing, nursing, care, et cetera, which she furnished her mother during her last illness, and included in her bill of particulars an item of $149.50 for funeral expenses. Defendant denied liability and admitted in his answer that, after the death of his wife, he returned to Bay City and filed a petition in the probate court of Bay county to establish his existence and his ownership of the property which Mrs. Bigger had attempted to convey to his stepdaughter. At the close of plaintiff's proofs, defendant asked the court to direct a verdict in his favor. The motion was granted with the exception of the item covering the funeral expenses, which the court properly held to be the liability of defendant.Stone v. Tyack, 164 Mich. 550. Judgment was entered for plaintiff in the sum of $153.46. In denying plaintiff's claim for the remainder of the items included in her bill of particulars, the trial court said:

"In the present case there was nothing from which it could be found that the plaintiff expected that the defendant would pay, or that either the defendant or his wife intended that he should pay, and therefore there could be no contract implied in fact. * * * The court's attention has not been called to any case wherein it is held that the husband is liable for necessaries furnished to the wife under the circumstances of this case, under a constructive contract or one implied in law. Neither does it appear to the court that the fact that the defendant and Mrs. Bigger did not live together and that he may have abandoned her and failed to support her, change the situation as far as the law is concerned; nor does it appear to the court that the fact that the property conveyed to the plaintiff by Mrs. Bigger turned out to be property owned as tenants by the entirety and therefore there was a total or partial failure of consideration, entitles the plaintiff to recover against the defendant when there was no contract, express, implied in fact or implied in law."

It is unnecessary to discuss the elementary principle of law that a husband is liable for necessaries furnished his wife. Nor is it necessary to elaborate on the presumption that plaintiff's action in giving aid and comfort to her destitute, abandoned, and sickly mother during the unexplained absence of her stepfather was gratuitous in its nature. The attempt by Mrs. Bigger to convey property to her daughter, and particularly the language used in this conveyance, fully negatives the presumption. See Shippee v. Shippee's Estate,255 Mich. 35, and McInerney v. Detroit Trust Co., 279 Mich. 42.

The real question in the case is whether the deceased wife pledged her husband's credit to his stepdaughter in order to secure the necessaries of life. See H. Leonard Sons v. Stowe,166 Mich. 681, and annotations in 27 A.L.R. 554. If the creditor does not look exclusively to the wife for payment, the husband is generally liable, and whether or not credit was so extended raises a question of fact. Paul v. Roberts, 50 Mich. 611, and 13 R. C. L. p. 1200.

Was there sufficient evidence presented in the instant case to take this question to the jury?

Services were rendered and necessaries were furnished by plaintiff in consideration of the conveyance of the Bay City home. It now appears that the grantor did not hold sole title to the property in question, it being then held jointly by husband and wife and is now the sole property of defendant, the survivor. These circumstances, together with the recitals in the deed, do not indicate that the services were rendered exclusively on the wife's credit.

We are unable to agree with the trial judge that defendant was entitled to a directed verdict. We decline to hold, as a matter of law, that a creditor looks exclusively to a wife for payment when credit is extended in consideration of the conveyance of property in which the husband has an interest. This situation presents a question of fact rather than one of law.

We are not unmindful of defendant's argument that plaintiff looked solely to her mother's property for reimbursement. However, she testified, "I always knew she and Mr. Bigger were joint owners of the house and lot." Also, a bill for divorce was pending when Mrs. Bigger died. Plaintiff's proofs are not entirely consistent; nor did Mrs. Bigger have the ability to secure proper legal advice on all occasions.

Taking plaintiff's proofs in the most favorable light, as we must in reviewing a directed verdict for defendant, we believe there was sufficient evidence presented to enable a jury to find that Mrs. Bigger pledged her husband's credit in order to secure the necessaries of life. At least plaintiff was entitled to go to the jury on this question.

The judgment for defendant, entered upon the directed verdict, should be set aside and a new trial ordered.

CHANDLER and McALLISTER, JJ., concurred with BUSHNELL, J.