We are cited to 8004 GC, which is to the effect that if the wife abandons the husband he is not liable for her support until she offers to return, unless she was justified by his conduct in abandoning him. We are also cited to the case of Morse v. Lewis, 15 O. A. R. 108
Without passing upon the question of the burden of proof as to whether it was the duty of plaintiff in the action to show that the wife was justified in abandoning defendant because of his misconduct, we are of the opinion that there is affirmative evidence in this record showing that there was no such justification and that she abandoned him without cause. This affirmative evidence is in the record and in our opinion, defeats the claim of the hospital company, as against the husband.
In addition to the foregoing it appears affirmatively from the record that when the wife entered the hospital the hospital company made its contract with her and so charged the bill to her on the books of the company. It was only after she died and upon discovery by the hospital, company that there were no assets in her estate, that it then decided to proceed against the husband. This, of course, was an after thought, having charged the bill in the first instance to the wife.
The judgment of the municipal court will therefore be reversed and judgment is entered for the plaintiff in error herein.
Vickery, PJ., and Sullivan, J., concur.