Opinion
S.F. No. 1282.
June 15, 1900.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Charles W. Slack, Judge.
The letter referred to in the opinion contained a notice of the return of the abandoned insane wife of the defendant to the institution of the corporation plaintiff by an officer of the law, etc. Further facts are stated in the opinion of the court.
P. Reddy, J.C. Campbell, and W.H. Metson, for Appellant.
The items of the account in question are not proved to have been supplied upon the credit of the husband, and he is not liable therefor. (1 Bishop on Marriage, Divorce, and Separation, secs. 1186, 1188; Goodale v. Brockner, 25 Hun. 621; Mitchell v. Treanor, 11 Ga. 324; Brown v. Worden, 39 Wis. 432; Mulcay v. Shaw, 3 Camp. 22; Arnold v. Allen, 9 Daly, 198.) The depositions taken in St. Louis were not admissible, not being properly certified. (Code Civ. Proc., sec. 2032; Dye v. Bailey, 2 Cal. 383; Williams v. Chadbourne, 6 Cal. 559; Higgins v. Wortell, 18 Cal. 331.) The copy of the letter was inadmissible, there being no proof of the loss of the original. (Code Civ. Proc., sec. 1855.)
56 Am. Dec. 425.
T.Z. Blakeman, for Respondent.
The husband, having willfully abandoned and deserted his insane wife, is liable for necessaries supplied to her by plaintiff, without reference to the actual knowledge of either party. (1 Bishop on Marriage, Divorce, and Separation, sec. 1259; Davis v. St. Vincent's Institution for the Insane, 61 Fed. Rep. 277; 9 C.C.A. 501; 15 U.S. App. 432; Cunningham v. Irwin, 7 Serg. R. 247 ; Mitchell v. Treanor, 11 Ga. 324.) Depositions taken out of the state are not regulated by section 2032 of the Code of Civil Procedure, but wholly by article IV, part III, title III, of the Code of Civil Procedure. Objection to the copy of the letter was waived by not taking a specific objection thereto. (Crocker v. Carpenter, 98 Cal. 421; Colton etc. Co. v. Swartz, 99 Cal. 284; Eversdon v. Mayhew, 85 Cal. 10; Owen v. Frink, 24 Cal. 177.) The letter was itself a notice to the defendant, and therefore notice to produce was not necessary. (Code Civ. Proc., sec. 1938; Gethin v. Walker, 59 Cal. 502.) The letter is presumed to have been received by the defendant in the regular course of the mail. (Code Civ. Proc., sec. 1963, subd. 24.)
10 Am. Dec. 458, 462, note.
56 Am. Dec. 421.
Plaintiff sues to recover for boarding and clothing the insane wife of defendant from June 28, 1891, to June 2, 1894. Plaintiff recovered judgment, and this appeal is from the judgment and an order refusing a new trial.
The first contention is that the evidence was insufficient to sustain the finding that the service was rendered on the credit of defendant. It is argued that it does not appear that defendant was even aware that she was being kept and provided for by the plaintiff at all.
Even if he had no such knowledge it would not follow that the defendant is not liable, or that the service was not rendered at his implied request. There is evidence which tends to prove that defendant in 1877 took his wife from the institution where he had himself placed her, and that within a day or two thereafter she was found, deserted and destitute, in a small town in the state of Illinois. She was at the time so far demented that she could give no account of herself. She did not know her name or where she came from. She was found at a hotel with a trunk and could not have got there with the trunk alone. The presumption is very strong that the defendant left her there, intending that her identity should be lost, that she might no longer be a charge upon him. Under such circumstances the husband would be liable for necessaries, even though the parties supplying them did not know of his existence or that she was a married woman. (Civ. Code, sec. 174; Davis v. St. Vincent's Institution for the Insane, 61 Fed. Rep. 277; 9 C.C.A. 501; 15 U.S. App. 432, and cases there cited.)
Appellant contends that the finding to the effect that the service was rendered at the request of the defendant is supported only by the copy of a letter addressed to the defendant in October, 1877, by the president of the plaintiff, which is a corporation, and that such copy was improperly admitted. The objections made to the evidence were that it was incompetent, irrelevant, and immaterial, and "there was no evidence that the person who mailed the letter knew the address of J.T. Davis, and there was no evidence that J.T. Davis ever received the letter." Supposing the letter to have been received, it was neither irrelevant, incompetent, or immaterial. The objection is, therefore, in reality, that it was not shown that defendant ever received the letter of which it was a copy. As to its being a copy rather than the original, no such objection was specifically made, and, as it is quite probable that if such objection had been made at the trial the defect could have been cured, we are not inclined to entertain it now.
Sister Isadore Minter testified that she was the secretary of the plaintiff in 1877, and she knew the copy offered was a copy of a letter written by the president, "addressed to J.T. Davis, mailed to him at his address, postage prepaid." This is a brief statement, and the evidence might have been amplified by a cross-examination. We may imagine that it could have been made to appear upon such cross-examination of the witness that she did not know the address of defendant, or even that she did not know to what point the letter was sent. But that she did is implied, and we cannot disturb the finding. Davis had, himself, had his wife boarded and cared for at the hospital before August, 1877, and the presumption is that he had corresponded with the sisters upon the subject and that his address was well known to them. The letter having been properly addressed and mailed to him, it is presumed that he received it. (Code Civ. Proc., sec. 1963, subd. 24.)
Objection is made to the reception in evidence of certain depositions taken for plaintiff at St. Louis, Missouri, on the ground that the certificate fails to state that the deposition when completed was read over to the witness and corrected by the witness if he so desired, as required by section 2032 of the Code of Civil Procedure. That section applies only to depositions taken in this state, and, therefore, does not reach this case.
The judgment and order are affirmed.
McFarland, J., and Henshaw, J., concurred.
Hearing in Bank denied.