
    Maurice Harttmann v. J. H. Tegart.
    July Term, 1873.
    1. Husband and Wife: Abandonment: Liability of Husband. Where a wife abandons her husband without just cause, he is no longer liable for her maintenance, or for medicine, or medical aid furnished to her.
    
    2. -: Abandonment: Burden of Proof. And where a physician who furnished medicine and medical aid to a wife who had previously abandoned her husband, afterwards sues the husband for such medicine and medical aid, it devolves upon the plaintiff to show affirmatively that the abandonment was for a sufficient cause.
    [3. Husband and Wife: Liability of Husband: It is always conclusively presumed that a wife who lives and cohabits with her husband has an agency, from him'and upon his credit, to procure everything that is necessary for herself or family, unless the person from whom she seeks to obtain such necessaries has actual notice that she has no such agency in fact; and in such a case it is presumed prima facie that what she procures are necessaries. Per Valentine, J.]
    
      Error from Douglas district court.
    Tegart sued Harttmann, before a justice of the peace, for medical attendance and services rendered by plaintiff for defendant’s wife. The justice gave judgment for plaintiff for $129.50, and costs. On petition in error to the district court, said justice’s judgment, at the November term, 1872, was affirmed.
    
      Thacher é Stephens, for plaintiff in error.
    It affirmatively appeared that Tegart had not the authority or consent of plaintiff in error to attend professionally upon his wife. Tegart himself testifies: “I did not have the authority of the defend.ant to attend Mrs. Harttmann. He never employed me, nor authorized me to attend his wife, nor did he ever promise to pay for the service •or medicine.” On the part of the defense it was proven, and not •controverted, that the defendant is a practicing physician of many years’ experience; that his wife had, without cause, left his house, where she was supplied with everything necessary for her support and maintenance, both medical and otherwise; and that he had a house well furnished and supplied, and. was ready and willing to support and maintain her there. On this statement of facts, the question is whether the plaintiff *in error is liable. He insists that he is not liable for debts contracted by the wife, without Tris consent, express or implied; that the wife cannot, at her will, -without just cause, leave a well-provided house, where all things ■necessary are furnished her, and compel the husband, without his assent, and contrary to his wishes, to furnish the same necessaries elsewhere; that a wife, as such, has no original or inherent power to make contracts obligatory upon her husband, and no such right flows from the marital relation. To give such power it must be derived from and founded in his assent. Tuttle v. Hoag, 46 Mo. 38; Blowers v. Sturtevant, 4 Denio, 47; M’Cutchen v. M’Gahay, 11 Johns. 281; M’Gahay v. Williams, 12 Johns. 293; Sturtevant v. Slarin, 19 Wis. 268; Keller v. Philips, 40 Barb. 390; Supervisors of Monroe •Co. v. Budlong, 51 Barb. 493; Rea v. Durkee, 25 111. 503.
    
      Barker & Summerfield, for defendant in error.
    The plaintiff claims that he is not liable, because his wife “left his residence without his consent, and against his remonstrance.” This may be true, and yet the plaintiff be still liable. Wives frequently leave their husbands without the husbands’ consent, and even against their remonstrance, as in cases of cruelty; yet it is very clear that in such cases the husband will be liable for the wife’s necessaries. And the burden of proof is on the husband. He must show affirmatively that the wife abandoned him without sufficient cause. See the well-considered ease of Town of Rumney v. Keys, 7 N. H. 571. There is nothing in this case to show why the wife abandoned the plaintiff, -and the court will presume that she left him for sufficient cause. At any rate, it nowhere appears that the defendant knew that the plaintiff's wife had abandoned him. He simply found her sick at her daughter’s house. There was nothing in this to put the defendant on inquiry. Before the husband can be absolved from his liability for the necessaries of his wife, it must either become notorious that she' has withdrawn herself from the care and protection of her husband, orr that the creditor had actual notice of the fact. In support of this', proposition we cite Vanuxen v. Bose, 7 Ind. 222; Litson v. Brown,, 26 Ind. 491.
    
      
       See Jennen v. Cutler, post, *516.
    
   *Valentine, J.

Only one question is presented to us for our-consideration by the briefs of counsel. That question is. whether the facts proved, as shown by the bill of exceptions allowed in the justice’s court, constitute any cause of action in favor of Tegart, the plaintiff below. From an inspection of the record we should think that other questions might have been raised; but as they were-not raised, we shall not consider them, but pass at once to the consideration of the question which counsel seem to unite in asking us to ■ decide. All the evidence introduced on the trial in the justice’s court is contained in said bill of exceptions. There was no conflict in said evidence, except as to the value of the services of the plaintiff, (defendant in error;) and with regard to said services we shall consider ■ them worth just what the justice found them to be worth, to-wit, $129.50, although, for the purposes of the case, it is immaterial what we may consider them to be worth. Said bill of exceptions shows the following facts: Both the parties to this suit are and were physicians. The wife of the defendant abandoned him, and went to live with her daughter. Why she abandoned the defendant is not shown, but she left him against his will and wishes. While residing with her daughter the plaintiff attended on her as a physician. Whether • she was sick or not, or whether she needed any medicine or medical aid, is not shown. The defendant was all-the time ready and willing to furnish her, at his own house, which was well furnished and in good condition, with everything she needed, — medical aid as well as other things. Whether the wife had any separate estate of her own, or to whom the plaintiff originally gave the credit, is not shown. Upon this state of facts is the defendant liable?

We suppose a mutual legal as well as moral obligation rests upon every husband and wife to furnish each other, so far as it is within their power, everything necessary for their mutual comfort and enjoyment. It is certainly the legal as well as moral duty of 1 every husband to see that his wife is furnished, *or has the means of furnishing herself, with everything necessary and suitable for a person in their station and condition. For this reason, it is- always conclusively presumed that a wife who lives and cohabits with her husband has an agency from him, and upon his credit, to procure everything that is necessary for herself or family, ■ unless the person from whom she seeks to obtain such necessaries has actual notice that she has no such agency in fact; and in such a case it is presumed prima facie that what she procures are necessaries. For the same reason, when a husband fails or refuses to-furnish necessaries for his wife, or to see that she has the means to-furnish them for herself, the law conclusively presumes that she has an agency from her husband, and upon his credit, to obtain necessaries, although the person from whom she seeks to obtain them, knows that in fact she has no such agency. But in this case there is no presumption, prima facie or otherwise, that what she obtains are necessaries. The same rules apply where a wife has separated from her husband for a justifiable cause, as where she lives and cohabits with him, except that where she has separated from him the entire burden of proof rests upon the party furnishing the supposed necessaries. In such a case the party furnishing the necessaries, and who wishes to make the husband liable therefor, must show— First, that he famished the necessaries; second, that they were necessaries; third, that her husband failed or refused to furnish them, or to furnish means whereby she could procure them, and that she had no sufficient means of her own whereby to procure them; foivrth, that the separation was for & justifiable cause on her part; fifth, and generally, that he gave the credit originally to the husband. We suppose where a person has been dealing with a family before the separation between the husband and wife, he is not bound to take notice immediately of the separation, but may trust the wife as usual upon the husband’s credit until he receives actual notice of the separation. But no such rule applies where such person has never oefore had dealings with the family. In such a case he must take notice of the separation as soon as it occurs. M’Cutchen *v. M’Gahay, 11 Johns. 281; Sturtevant v. Slarin, 19 Wis. 268; Cany v. Patton, 2 Ashm. 140; Porter v. Bobb, 25 Mo. 36; Reese v. Chilton, 26 Mo. 598. For the purposes of this case we shall assume-, that everything necessary to enable the plaintiff to recover was-proved, except that the wife abandoned her husband for a justifiable: cause; and then the only question necessary for us to decide, and-, the only questions which we wish to be understood as deciding, are.the following: First, is it necessary that the wife should have.abandoned her husband for a justifiable cause, in order to enable the-plaintiff to recover ? Second, upon whom does the burden of proof rest ? Must the plaintiff show that the cause of separation was sufficient, or must the defendant show that it was insufficient ?

1. The proposition that when a wife abandons her husband without just cause, and refuses to longer live or cohabit with him, she loses all right to maintenance from him while such abandonment continues, seems to be too clear and too reasonable to require argument or citation of authority. It is not the policy of the law to encourage separation between husband and wife. It is not the policy of the law to encourage willful breaches of the marriage vows and duties, and to weaken the wholesome influence which keeps those together who have solemnly pledged themselves to live together. And it never was the policy of the Jaw to cast burdens upon individuals without some corresponding benefits. It would shock human nature to say that a husband who has done no wrong should support a wife without having a benefit of her company or society. And when a husband furnishes a good home, as in this case, he is bound only to support her there, and is not bound to support her at the house of some •other person, who possibly may be encouraging the separation. Supervisors of Munroe v. Budlong, 51 Barb. 493. See, also, Collins v. Mitchell, 5 Har. (Del.) 369; Pool v. Everton, 5 Jones, (N. C.) 241; Brown v. Patton, 3 Humph. 135; Cany v. Patton, supra; Rea v. Durkee, 25 Ill. 503; Sturtevant v. Slarin, supra; M’Cutchen v. M’Gahay, supra; Blowers v. Sturtevant, 4 Denio, 46; Brown v. Mudget, 40 Vt. 68.

2. We think it is equally clear that the burden of proof in a case like this is upon the plaintiff. He holds the affirmative of the issue, and one of the points in issue is whether the wife left her husband for a just cause. That the burden of proof is upon the plaintiff in cases like’this, see the cases hereinbefore cited: Rea v. Durkee, supra; Blowers v. Sturtevant, supra; Porter v. Babb, supra; Rees v. Chilton, supra; Cany v. Patton, supra; Pool v. Everton, supra; and Mitchell v. Treanor, 11 Ga. 324; Billing v. Pilcher, 7 B. Mon. 458; Gill v. Read, 5 R. I. 343; Walker v. Simpson, 7 Watts & S. 83; Cartwright v. Bate, 1 Allen, 516; Keller v. Philips, 40 Barb. 390; Schouler, Dom. Rel. 93, note 5.

The judgment of the court below is reversed, and cause remanded, with the order that the judgment of the justice of the peace be reversed, and a new trial granted.

(All the justices concurring.)  