City of Detroit v. Eisele , 362 Mich. 684 ( 1961 )

Kelly, J.

Defendant was hospitalized at the Detroit Receiving Hospital for injuries sustained in an automobile accident. At the time she was an unemployed married woman, with 2 children, whose only means of support was her husband’s earnings.

Plaintiff, city of'Detroit, commenced suit against defendant for the balance due on the hospital bill in the amount of $5,905.70. Defendant’s husband’s Blue Cross insurance had paid approximately $7,000 toward the bill. In its declaration plaintiff alleged the hospital and medical services were rendered at the request of defendant and her husband and that she expressly or impliedly promised to pay.

Defendant filed her answer denying she had requested the services or that she had promised to pay for them, either expressly or impliedly, and, also, filed a motion for summary judgment. In her accompanying affidavit she denied that she had ever orally or in writing promised to pay and that credit was not extended to her but to her husband; that she was a married woman with 2 children living with her husband with no visible means of support other than her husband’s earnings; that Blue Cross insurance carried by her husband paid a substantial portion of the hospital bill, and that plaintiff had commenced suit against her husband for the balance due.

Plaintiff’s counteraffidavit stated that services were not furnished gratis and that credit was extended to both defendant and her husband. In its brief, plaintiff admits it does not rely upon an express promise to pay but, on the contrary, relies upon the appellee’s implied promise to pay.

The lower court granted a summary judgment of no cause of action in favor of defendant, from which plaintiff appeals contending: (1) the pleadings and affidavits create a material issue of fact precluding the granting of a summary judgment; (2) that commencing of legal action against defendant’s husband individually did not bar a proceeding against defendant, who is jointly and severally liable, and (3) that a statement in the court’s judgment to the effect that plaintiff’s counteraffidavit did not meet the prerequisites of Court Rule No 30, § 4 (1945), was error.

A summary judgment should not be entered where an issue as to a material fact is raised by the pleadings and affidavits. Maser v. Gibbons, 280 Mich 621.

Does plaintiff’s counteraffidavit and pleadings create a material issue of fact which would preclude a summary judgment?

Medical treatment is a necessity for which a husband is primarily liable. In re LaFreniere’s Estate, 323 Mich 562. The following cases indicate that a wife can bind her separate estate for necessities, but in each case it was shown that the wife expressly requested the service and that credit was extended solely to her and the contract was with her alone. Paul v. Roberts, 50 Mich 611; Campbell v. White, 22 Mich 178; Carstens v. Hanselman, 61 Mich 426 (1 Am St Rep 606).

In the case of Schultz v. Pomplon’s Estate, 227 Mich 304 (36 ALR 387), plaintiff performed domestic services for her annt and nncle. The testimony showed that both the annt and nncle promised she would be paid. The nncle died first, but plaintiff made no claim against his estate. Upon the subsequent death of the aunt, however, she filed a claim against the estate for services performed while both the aunt and uncle were living, contending there was an inference that she was to be compensated in the survivor’s will. We held (pp 305, 306, 308):

“We shall consider but 1 question as that will dispose of the case. This court has frequently been called upon to determine the enforceability of varying types of contracts of married women. In many cases the particular contracts before the courts have been held enforceable, in many others the particular contracts before the court have been held unenforceable. The question before us for solution is, into which class does the contract here before us fall? In Campbell v. White, 22 Mich 178, it was held competent for a married woman to bind herself and her separate estate for goods purchased by her for use in the family. It was pointed out that she had the right to purchase property and bind herself for the payment of its price, and it was unimportant what she did with it afterwards. In Hirshfield v. Waldron, 83 Mich 116, a married woman was held liable for a suit of clothes purchased for her son, and in Meads v. Martin, 84 Mich 306, a married woman was held liable for medical services and supplies and for groceries furnished her. But in each of these cases the credit was extended solely to her and the contract was with her alone. * * #

“In the instant case John Pomplon was primarily liable to plaintiff for all the services she performed. He agreed to pay for them. Under the testimony Louise Pomplou also agreed to pay for them. Under the authorities she, being a married woman when she made such agreement, was not bound by it. The trial judge should have directed a verdict for the estate.”

In Carstens v. Hanselman, supra, plaintiff, a physician, commenced an action against defendant for medical services. The defendant had been deserted by her husband 9 or 10 years prior thereto, and she supported herself. The Court found there was sufficient evidence of a contractual relation providing she was capable of binding herself. In deciding that defendant could bind herself, the Court stated (pp 429, 430):

“That the medical services rendered were in a proper sense necessaries cannot be questioned. As such, it is possible the husband might be responsible. But he was entirely unknown in this transaction, and was not referred to by anyone, and plaintiff had never heard or supposed there was such a person. Our statutes, before we had any law enlarging the business rights of married women, contained liberal provisions to enable women who wore deserted to act for themselves. Since their rights have been put under their own control, they have had general power to contract concerning their own property, and. have been authorized to sue singly for all causes of action, and to be sued separately for all their torts. Their power to make any kind of purchases on their own credit has been fully recognized: Paul v. Roberts, 50 Mich 611; Campbell v. White, 22 Mich 178. And while they have not a general power to make agreements of all kinds, we think they must necessarily be able to make contracts concerning what it is essential for their safety and security for them to procure. Section 6298 of Howell’s Statutes [CL 1948, § 557.4 (Stat Ann 1957 Rev § 26.163)] makes a wife liable to be sued upon any contract on which her husband is not liable, or where he refuses to perform it.

“Where' a husband utterly deserts his wife, it would be a cruel rule for her if she cannot, in his absence, at least, or in his presence, if he does not himself provide for her, make a binding agreement for any necessary, whether articles to be purchased or professional help, without becoming a public charge. It is not to be expected that physicians and surgeons will always feel bound to render gratuitous treatment to injured persons, and when the occasion is pressing it would lie unreasonable to delay until an absent husband is communicated with to learn whether he consents or refuses to assume her contracts. Time will not allow minute inquiries, and humanity will not prompt them. It seems to us that no sensible line can be drawn between contracts for food and clothing and contracts for medical aid. It is not going out of the way to regard a husband who deserts his family, and does nothing for their support, as refusing to perform the contracts of his wife for necessaries. Such, stubborn and wilful neglect is treated as equivalent to a refusal in most cases of dereliction of duty, and there is no reason for making an exception in such a case as this. We think the contract was binding.”

The instant case is not one where the husband was not liable, nor where he refused to perform. Furthermore, taking the view most favorable to plaintiff that there was an implied promise to pay, the credit was not solely extended to defendant nor was the contract with her alone, as evidenced by the payments of the Blue Cross insurance and plaintiff’s suit against defendant’s husband (which has ripened into judgment).

The lower court did not err in granting a summary judgment in favor of defendant.

We agree with plaintiff that a judicial proceeding against 1 of 2 or more parties jointly and severally liable does not bar legal proceedings against the others. In this case, however, defendant wife did not become liable, either jointly or severally, for reasons previously stated herein.

The question has been raised as to the sufficiency of plaintiff’s counteraffidavit under the applicable court rule. We do not think it necessary to give consideration to such matter for the reason that, if plaintiff’s statement in its affidavit is insufficient, such fact would not alter the decision reached herein.

Judgment affirmed.

Carr, Smith, Edwards, and Souris, JJ., concurred with Kelly, J.