DocketNumber: No. 6,538.
Citation Numbers: 284 P. 532, 86 Mont. 535
Judges: MR. JUSTICE FORD delivered the opinion of the court.
Filed Date: 2/1/1930
Status: Precedential
Modified Date: 1/12/2023
The original complaint in this action contained an allegation that the husband and wife were not living together as such at the time she sustained injuries resulting in the necessity of receiving medical attention. That complaint apparently was attempted to be drawn under section 5801, Revised Codes 1921. It failed to allege the reason why they were not living together, and it did not allege that they were living separate and apart by virtue of an agreement stipulating for her support. The amended complaint, however, is treated by the parties and by the *Page 541 majority opinion as one seeking recovery under section 5800. This section provides: "If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from her husband."
The precise question presented is: Is the cause of action one "upon a contract, express or implied, for the direct payment of money," justifying an attachment under section 9256, Revised Codes 1921?
It should be kept in mind that this is not an action by the wife against the husband to compel the discharge of the obligation of support. The plaintiffs here are assignees of the persons furnishing the necessities; they stand in the shoes of those furnishing the articles for the wife's support. Were the action one by the wife to compel performance of the duty of support, it might even then be doubted whether the obligation is one arising from contract, express or implied, for the direct payment of money.
In 30 C.J. 517, it is said: "The duty of the husband to support the wife is not dependent upon contract." The court of chancery of New Jersey, in Boehm v. Boehm,
In Goelitz Co. v. Industrial Board of Illinois,
But whatever may be the nature of the obligation as between the wife and her husband, that question is not involved here. This is an action by the assignees of the persons who furnished the necessities. The question here presented is this: Is the obligation of the husband to third persons who have furnished necessaries for the wife one on contract, express or implied, for the direct payment of money? *Page 543
Here the complaint is not predicated upon a contract made with the husband. Neither is recovery sought by reason of any agency of the wife, either actual or ostensible. The person furnishing the supplies, in order to have any standing in court, must point to the statute fixing the liability. The statutes were intended by the legislature to cover the whole subject of the rights, duties and obligations of the husband and wife and to supplant all rules theretofore in force on the subject. (Grimstad v.Johnson,
A case possessing similar features is that of Wilson v.Harvey, 52 How. Pr. (N.Y.) 126, where the court held that the liability of children to support their indigent parents imposed by statute was not an obligation arising on "contract, express or implied," for which an attachment would lie, but that the liability rested "wholly upon the statute."
But it is asserted in the majority opinion that the statute merely makes the wife the agent of her husband for the purpose of binding him for the necessities of life. If this is the proper effect to be given to the statute, I am unable to see how it aids the plaintiffs' case. The agency, if such it be, is one created by statute, and any obligation incurred by or arising out of such an agency would, in my opinion, still be an obligation imposed by law. But to construe section 5800 as creating an agency is altogether too narrow a construction to be placed upon the words used by the legislature. The statute makes no reference to an agency. It makes the husband liable to the third person regardless of the consent of either husband or wife. To illustrate: If the wife is mentally incompetent or sustains an injury rendering her unconscious, she is then unable to contract either for herself or as the agent of her husband, and yet it cannot be said that the husband would *Page 544
not be liable for medical attention and other necessities furnished to her by third persons, if the other conditions named in the statute existed. The conclusion is inescapable that the person furnishing the necessities must base his cause of action against the husband, under the circumstances here presented, upon the statute. This being the case, the obligation is one imposed by law and not by "contract, express or implied, for the direct payment of money. In Butler v. Peters,
But if by any possible construction of the statute it may be held to impose a contractual obligation, still it is not one on which an attachment may issue. This court has held that the contract for the direct payment of money, in order to justify an attachment, must be an unconditional one. (Gilna v. Barker,
In my opinion, the cause of action here involved is not on a "contract, express or implied, for the direct payment of money," and that an attachment will not lie. There seems to be no good reason why such obligations should not be made attachable, but that is a question which addresses itself to the legislature and not to the courts.
The motion to discharge the attachment should have been sustained.