Biddle v. Frazier

8 Del. 258

• Court: Superior Court of Delaware
• Decided: July 5, 1866
• Status: Published

Opinion

The Court

ruled out the depositions on the last exception, solely, as the commission to take the depositions of such witnesses had not been executed in accordance with the evident design and object of the special provision of the constitution in such cases,

Rodney.

If it appeared from the evidence that the defendant’s wife was actually compelled to leave him by his treatment of her, or if he did not actually send her away, he provided the means and actually directed her to leave, and she left to avoid a rupture and an actual collision with him, then he was under an implied obligation to provide her with necessaries suitable to her condition, and to pay any who furnished them, whether a near, relation, or not, and all the cases cited clearly established such to be the law. It was not a case such as had been cited on the other side, of gratuitous services, or friendly ministrations and mere kindness and hospitality among near relations, and in which the law very wisely will not presume any legal obligation or liability to pay for such favors without proof of an actual promise to do so. But the case stood upon an entirely different ground; for when a husband by his ill treatment, constrained his wife to leave him, the right to recover for necessaries furnished her, did not, and never did, depend on any express promise or contract to pay for them, but rather upon his legal duty and obligation and the liability which the law imposed upon him to maintain her; and, therefore, ho express promise was necessary in such a ease to maintain the action.

The Court, Gilpin, C. J., charged the jury.

The plaintiff alleges that the defendant turned his wife and two children out of his house and sent them to his, where he has had to maintain them at his own expense for about six years past, and the action is brought to recover a reasonable and just compensation for that expense, from the defendant who he alleges is bound to maintain them and to pay him for it. The counsel for the plaintiff admits the principle of law which has been so often recognized and ruled in this court, that as between near relations, the law will not in general, ' imply a promise to pay for such necessaries as had been spoken of in this case, and that without proof of an express promise to pay for them, no action at law will lie to recover for them as between such relations; but he contends that the present case does not fall within that principle and ruling, because if the defendant sent his wife and children to the plaintiff, her father, .who had in the meanwhile supported and maintained them, he would be liable and bound in law to pay the plaintiff for all the necessaries he had so furnished, without any actual or express promise by the defendant to pay him for them. In this aspect and in this peculiar feature of it, the case is distinguishable in that respect, at least, from any other case which has yet come before the court in connection with that principle. It was not, however, the mere sending of his wife and chil dren to her father’s and leaving them even for such a length of time, that would be sufficient to render the defendant liable in law to the plaintiff for the necessaries furnished, without proof of an express promise by him to pay for them; but if he had turned her out of his house without sufficient cause, or had compelled her by cruelty, or ill treatment to leave his house with her little children, or if he rendered her situation under his roof unsafe by reason of cruelty and ill treatment, or if she had reasonable grounds to apprehend personal violence at his hands, and was thus constrained to leave his house, in either of such cases the law would give her authority to pledge his credit for her necessary supplies and the supplies of their children, and under such circumstances the law imposes upon him the obligation to pay the debts which she has incurred for necessaries, and in such case, the plaintiff would be entitled to recover whatever the jury might consider it would reasonably cost to support and maintain the wife and children during the time they had lived with the plaintiff. But before the jury will be justified in finding a verdict against the defendant, they must be fully satisfied from the evidence, pither that he actually turned her out of his house without sufficient cause, or compelled her by cruelty or ill-treatment to leave his house, ill-treatment or cruelty such as to afford her reasonable grounds to apprehend personal violence at his hands, or such as to render her situation unsafe to remain under his roof. Mere disagreement, or incompatibility of taste, temper, or dispositions, or m.ere quarreling, jealousy or discontent with her situation, will not be sufficient. There was no evidence before them of cruelty, or personal violence, nor anything showing that she had reasonable grounds for apprehending personal violence at his- hands. Did he turn her out qf his house in the sense in which those terms are used in the law ? If he did, then the plaintiff would be entitled to recover, but if not, then their verdict should be for the defendant.