Stone v. Tyack

Brooke, J.

(after stating the facts). Defendant urges, four reasons why plaintiff should not recover, as follows:

(a) Because it is admitted by plaintiff that he made no effort to notify the defendant of the death of defendant’s wife, and defendant had no notice and no opportunity to bury the deceased.

(b) Because plaintiff voluntarily and gratuitously assumed the obligation.

*552 (c) Because plaintiff made no demand upon defendant before bringing suit.

(d) Because there was no contract, express or implied.

That the husband is primarily legally liable for the ordinary funeral expenses of his wife, is not open to question. Sears v. Giddey, 41 Mich. 590 ( 2 N. W. 917 , 32 Am. Rep. 168); Galloway v. McPherson’s Estate, 67 Mich. 546 ( 35 N. W. 114 , 11 Am. St. Rep. 596 ); Gleason v. Warner, 78 Minn. 405 ( 81 N. W. 206 ); 21 Cyc. p. 1233, and cases cited; 15 Am. & Eng. Enc. Law (2d Ed.), p. 880.

Defendant’s first position is untenable for the reason that the record clearly shows that plaintiff did not know where defendant lived. He was therefore unable to notify defendant, even if it was his duty to do so. Under the circumstances presented by this record, he did not owe this duty to defendant, though, by causing a letter to be written to defendant’s brother, he apparently took the best means at hand to bring the fact of Mrs. Tyack’s death to defendant’s notice. Had defendant displayed the slightest interest in his wife’s welfare, he would have arranged with the asylum authorities to keep him advised of her condition and of her death, if it should occur. This simple act of humanity towards the woman he had lived with for nearly 20 years, as husband and wife, he did not perform. He should not be heard to complain now, because a stranger did not cause him to be notified. It was his duty to have provided for such notice himself.

The fact that, at the time the liability for the funeral expenses was incurred by plaintiff, he expected to discharge that liability himself, is of no consequence. Public necessity demands burial, and, when not furnished by those legally liable, may be furnished by strangers, and the value thereof recovered from the person liable therefor. The liability of the husband, in the case at bar, is not altered by the fact that at the time of his wife’s death they were living apart. Cunningham v. Reardon, 98 Mass. 538 ( 96 Am. Dec. 670 ); Ambrose v. Kerrison, 10 C. B. 776, 20 L. J. C. P. 135.

*553 No contract between defendant and plaintiff was necessary, nor was it necessary to make a demand before bringing suit. The suit was itself a demand.

It should, perhaps, be noted that, in the case here considered, there is no claim of unlawful or officious interference with the husband’s rights on the part of the plaintiff, and it does not appear that the cost of the burial was greater than was reasonably consistent with the station in life of deceased and her husband.

The judgment is affirmed.

Moore, McAlvay, Blair, and Stone, JJ., concurred.