Moore v. Copley

Opinion by

Mb. Justice Williams,

This appeal brings before us an extraordinary record. The action was brought against a married woman in order to charge her separate estate with the amount of an account for medical services rendered to herself and her children while living with her husband. Upon the trial in the court below, and at the suggestion of the learned trial judge, a verdict was taken by consent in favor of the plaintiff for the amount of the account “ subject to1 the opinion of the court on legal points reserved.” This appears upon the minutes of the trial, and regularly the points reserved should then have been put upon the record either by a special verdict or by a distinct reservation stating the question of law held under advisement. The points reserved are not stated in any manner on the record, and for this reason, if for no other, the judgment should be reversed. But we have groped through the defendant’s points, and the opinion of the court, to satisfy ourselves upon what question the judgment of the court appeared to rest, in order if possible, to save a retrial of this small case. We conclude that the fourth and fifth points of the defendant raised the only legal question in the case, and that the reservation was therefore intended to be of the question whether a book account against a married woman afforded proof, prima facie, both of the services rendered and of the express undertaking of such married woman to subject her separate estate to liability for their payment. The learned judge ruled this question in favor of the plaintiff and accordingly entered judgment in his favor. In speaking of this question he said that a book account against a married woman “ would have the same weight, force and effect towards proving a contract or promise on her part to pay the debt as an ordinary book account would have against any individual.” This statement overlooks the disability of the married woman and the primary liability of the husband for the support of his family.

While the power of the husband over the separate estate of his wife has been taken away, his liability for her support and that of his children remains. He is, at least for the purpose of providing necessaries, the head of his household, and he is liable for such necessaries furnished to his wife and children whether with or without his knowledge. His wife is not liable unless she expressly undertakes to become so. Her undertaking is never presumed, but must be shown affirmatively. The act of deliveiy of the goods to her, or the fact that the creditor has chosen to charge them to her, is not enough. This might tend to show the desire of the creditor to reach her estate, but it does not tend to show her agreement that he shall do so. If, as we assume, this was the question reserved, the judgment should have been entered in favor of the defendant non obstante veredicto. It was the duty of the plaintiff to show, in addition to the entries upon his books debiting the married woman with his medical services rendered to her and her children, her promise to pay. In the absence of such proof the legal presumption is that in sending for a physician she was acting as the agent of her husband and pledging only his credit.

The judgment appealed from is now reversed, because, first, no reserved question is stated in any manner on the record; and, second, because upon the only legal question raised by the defendants’ points the ruling of the court below was erroneous.