Correll v. The B. C. R. & M. R. R. Co.

ing the track, a greater amount of care was required than if he was doing the act at some other time.

"Another thought in this connection. In determining the question as to the negligence of plaintiff's brother, he had the right in approaching the track to assume that the trains of the plaintiff would not be running at a rate of speed greater than six miles an hour. In other words, all men have a right to expect that others will not violate the law."

The last paragraph is the portion complained of, and it is claimed in argument that it ignores the question of contributory negligence. We think that there is no reasonable ground of objection; that it is not fairly susceptible to those made by appellant in argument. It was conceded that the train was running at a greater rate of speed than six miles per hour, and there could be no prejudice resulting from the assumption of that fact as true. The language objected to, fairly interpreted, amounts to nothing more or less than telling the jury that the person about to cross the track had a right to presume, until the contrary should appear, that the defendant would not run its cars at an unlawful rate of speed. Thus understood there can be no reasonable objection made thereto. It does not in any manner contravene the doctrine of contributory negligence. It does not tell the jury that the plaintiff's brother, who was driving the horses and mules across the railroad track, might rely upon this presumption as a justification of his own negligence in approaching the crossing, but that this presumption is proper to be considered in connection with the question of contributory negligence. It enters into that question, but is not all of it. See Langhoff's Administrators v. The Milwaukee & Prairie Du Chien Railroad Co., 19 Wis. 489; Jetter v. New York & Harlem Railroad Co., supra.

III. The appellant insists that upon the evidence it is shown that plaintiff's brother, who had charge of the stock injured, and who was driving the same across the railroad track at the place where the injury happened, was guilty of contributory negligence, and that therefore the court erred in overruling the motion for a new trial, and in rendering judgment on the verdict of the jury. This primarily was a question for the jury. The case does not come within the doctrine of Dodge v. The B., C. R. & M. R. R. Co., 34 Iowa, 276; Artz v. The C., R. I. & P. R. R. Co., id. 153; and Carlin v. The Same (Dec. Term, 1873).

Porter v. Briggs.

We cannot say that the finding of the jury is not sustained by the evidence. On the contrary, it seems reasonably probable that if the defendant's train had been moving at a lawful rate of speed, the person in charge of the plaintiff's stock would have been able, by the efforts made by him, to prevent the injury; that his conduct would have been consistent with due care on the hypothesis that he supposed the train to be moving at a lawful rate of speed. This he had a right to assume until the contrary appeared. Whether he was apprised of the true speed of the train in time to act differently from what he did, is doubtful, to say the least.

Appellant does not urge in argument the errors assigned upon other instructions, therefore they will not be noticed here.

In the view we have taken of the case, it becomes unnecessary to examine the question whether the defendant was negligent in the construction of the street crossing where the accident occurred. The judgment of the District Court is

Affirmed.

PORTER V. BRIGGS, appellant.

(38 Iowa, 166.)

Husband and wife — liability of husband for fees of wife's attorney.

A husband is liable for services rendered by an attorney at law in establish ing the innocence of the wife upon a charge of adultery made by the hus band himself in an action for divorce; but this liability extends to no more attorneys than were necessary.*

CTION by attorneys at law to recover against defendant for professional services rendered by them in defending his wife in an action brought by him for divorce on the ground of adultery. The petition alleges that the services rendered were necessary to establish the wife's innocence of the crime of adultery, with which she was charged by her husband, and that she has no estate of her own from which the debt may be collected. The petition does not allege any special undertaking by the defendant

* See contra, Ray v. Adden, 9 Am. Rep. 175.

Porter v. Briggs.

to pay for the services rendered by plaintiffs. A demurrer to the petition on the ground that no contract of defendant is alleged, was overruled. Defendant standing upon his demurrer, judgment was rendered against him. He now appeals to this court.

D. W. Pointdexter, for appellant.

Cyrus Foreman and Adams & Robinson, for appellee.

BECK, J. The question presented for our decision in the case before us is this: Is the husband liable for services rendered by an attorney at law in establishing the innocence of the wife upon a charge of adultery made by the husband himself in an action for divorce? In our opinion he is liable for such services upon an implied promise, which the law raises, to pay therefor as necessaries for the wife.

The liability of the husband, upon an implied undertaking to pay for necessaries supplied to the wife, is everywhere recognized. But what things or what services are within the rule is often a matter of dispute as a question of fact. Whatever is suitable and proper for the wife, considering her station in life, is esteemed necessaries. And this is so, whether the things supplied her be apparel, furniture, or personal services of servants, mechanics, artists, physicians, or others whom she may employ. The difficulty in applying the rule always arises in determining what her station in life demands as necessaries.

The rule is based upon the duty of the husband to support the wife, to supply her with such things as are deemed necessary. It is not confined to the supply of things demanded for her sustenance, apparel, and health, but extends to whatever is necessary for her happiness, comfort, and enjoyment of life, considering the station she occupies as to wealth and fashion. Jewelry and the like, so far as they are demanded by the conditions of society, and the fortune of the husband, are within the rule. Whatever is necessary for the protection of the person of the wife, the hus band is bound to supply. And it cannot be denied that he is under obligation to secure and protect her good name. The enjoy.

ments of life will be destroyed, and the wife will be deprived of the society of the pure and good which, as a source of happiness, can hardly be overestimated, if her character for virtue be assailed

Porter v. Briggs.

To protect her good name is an undoubted duty of the husband. If the wife finds it necessary to incur expenses in protecting her person or personal liberty, who can deny that the husband is liable therefor? The good name of a virtuous woman is esteemed by herself and society of even more importance, so far as her happiness is concerned, than personal security and personal liberty. Why should not the husband be liable for all necessary expenses in securing her its full enjoyment?

It can hardly be doubted that if a wife is charged in a legal proceeding by a stranger, with the crime of adultery, the husband would be liable for all necessary expenses incurred in establishing her innocence. His liability would rest in such a case on the ground that the expenditure was demanded for her comfort and happiness The law looks to and regards her rights in securing her protection, and it is not given because of any thing the husband may suffer when they are invaded.

The rights of the wife are in nowise changed, nor does the necessity for protection cease when her personal safety, liberty or good name are assailed by the husband himself. He may as effectually destroy them as a stranger. In truth, her claim for the protection of the law against such attacks by the husband is stronger than if made by a stranger. His relation to her increases their force and probability of success, and will cause them, if successful, the more effectually to overthrow her peace and happiness. If the husband should, by his own acts, cause disease to visit the wife, it would not be pretended that the necessary expenses of a physician incurred in restoring her to health could not be recovered against him. Upon the very same principle he is liable for attorney in defending her character from his

the expenses of an

assaults.

These views are not without the support of precedents recognizing the principles upon which they are based.

In Shepherd v. Mackoul, 3 Camp. 326, a husband was held liable upon an attorney's bill for services rendered in exhibiting articles. of peace against him. In this case Lord ELLENBOROUGH remarked that the wife "had a right to appeal to the law for protection, and she must have the means of applying effectually; she might, therefore, charge her husband with the necessary expense of this proceeding as much as for necessary food and raiment." Morris v. Paitner, 39 N. H. 123, holds the same doctrine in a case upon quite

similar facts. In Warren v. Heiden, a recent Wisconsin case, Am. Law Register, May, 1872, p. 279, the husband was held liable to an attorney for services rendered on behalf of the wife in a proceeding to require her to keep the peace brought by the husband.

In Brown v. Ackroyd, 5 E. & B. 819 (34 Eng. L. & Eq. 214), the doctrines we have adopted are fully recognized.

The liability of the husband for the necessary expenses of the wife in employing counsel in the prosecution or defense of an action for divorce is uniformly recognized and enforced in the ecclesiastical and chancery courts, where such proceedings are prosecuted. It is usually enforced by orders taxing such expenses as costs, de die in diem, but in this State it is often done, if it is not the usual practice, by an order for the payment of a sum in gross as compensation for the wife's attorneys. At all events, the husband's liability 18 never denied. There can be no good reason given why it may not be enforced in an independent action at law, if it be admitted that the services of an attorney are necessary for the wife's protection.

In Johnson v. Williams, 3 G. Green, 97, it was held that the husband was not liable to the attorney of his wife for services in prosecuting an action brought by her for a divorce. It was held that such services do not come within the description of necessaries, as that word is used in the law; and upon this ground the opinion is based. The decision of that case is not in conflict with our conclusion above announced, while the reason upon which it is based must be admitted to conflict with our views. It was not shown that the services rendered in the action for divorce in that case were necessary for the wife's protection, a fact that is the very ground upon which we base our conclusion in this case. There may be a wide difference as to the liability of the husband between the case where the wife prosecutes the action, and one which is brought by the husband. In the first instance we conceive there may be such a state of facts as do not show that the prosecution of the action is necessary to the wife's protection. In that case, under the principles of this opinion, the husband would not be liable. In order to fix his liability, the services must be shown to be necessary, within the rule we recognize, for the protection of the wife's person, liberty or reputation.

Cases are found in the books in conflict with the conclusion we announce. See Wing v. Hulbert, 15 Vt. 607; Coffin v. Dunham, 8