¶1(concurring, and dissenting in
¶2part).
¶3The prevailing opinion correctly holds with respect to the main issue involved, that the attorney’s services in the habeas corpus proceeding were for the benefit and welfare of the child, the mother and the family unit and are, there- ■ fore, “family expense” within the meaning of our statute. I am in entire accord with the excellent case Mr. Justice *88LATIMER makes to that effect. The whole argument applies with equal cogency to services rendered in connection with the divorce proceeding. I therefore do not agree with the holding vacating that portion of the judgment.
¶4It is true that according to the numerous cases listed in the annotation at 25 A. L. R. 354 (1923) the then numerical weight of authority was according to the holding of the prevailing opinion. There is there listed, however, a considerable number of jurisdictions which hold to the contrary and under certain circumstances permit a recovery by the attorney in an independent action for reasonable and necessary legal services rendered to the wife in connection with a divorce action. They are: Georgia, Iowa, Kansas, Louisiana, Maryland, New York, Texas and West Virginia, and this is also the rule in England. Reference is made to that annotation and a supplement thereto, 42 A. L. R. 315, for a discussion of the various cases indicating that there is some variance both in the statutes of the different states and also in the basis upon which recovery is allowed. Some states allow recovery for attor-' ney’s services in defending but not for prosecuting a divorce action on the ground that the one is an attempt to destroy, and the other an attempt to salvage the marriage. As will be observed from the ideas hereinafter expressed, I believe that the reasonable and necessary services should be allowed in connection with any domestic difficulty whether an action is actually filed or not, and if one is filed, no matter who initiates the action, and whatever the ultimate solution may be.
¶5The cases which refuse to allow attorneys to maintain independent actions for attorney’s fees for services rendered in connection with domestic strife assign two reasons for such refusal: (1) That the remedy as set up by statute within the divorce action is adequate, and is exclusive, and (2) such services are not “necessaries” and therefore the court has no legal basis for allowing recovery.
¶6*89It requires but little reflection to see that the remedy within the divorce action is not always adequate. In the first place, the wife may need legal counsel before any action is commenced and the trouble may be ironed out without the filing of a suit. Secondly, even if an action is started, the difficulties may be adjusted before an award of counsel fees is made. In the latter instance, the attorney cannot proceed in the main action independent of his client. Although, so far as we have been able to determine, the question has never been directly passed on in this state, it seems pretty well established that he cannot do so, 17 Am. Jur. 454; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A. L. R. 935, and an annotation listing numerous cases following the latter citation.
¶7According to the cases which permit a recovery in an independent suit, it is permitted only when the main action was never filed or has been dismissed or discontinued so that the attorney would be without any other possibility of recovering for his services. The attorney cannot maintain the independent action during the pendency of the divorce action because the court has jurisdiction to make a necessary award of attorney’s fees therein; nor can he maintain the action if a divorce suit has been terminated so that the matter could have been there litigated.
¶8Because of the fact that the remedy within the divorce action is inadequate, it seems to me that it is necessary that there be some other remedy. Otherwise, a wife and children may find themselves in circumstances of intolerable neglect or abuse and without money or credit to procure sorely needed legal assistance. That being so, when the lawyer is unable to get compensation within the principal action, and the wife is unable to pay, the only other possible way for him to be justly compensated is to hold the husband liable on the ground that such services are “necessaries.”
¶9*90The question then is are such services “necessaries,” or, to use the phraseology of the Utah statute “expenses of the family”? The cases supporting what has been called the majority view adhere to a somewhat restricted interpretation of the term “necessaries.” Many of them refer to the common law rule, as stated in Sumner v. Mohn, 47 Cal.App. 142, 190 P. 368, that “necessaries” at common law consisted only of food, drink, clothing, washing, physic and a convenient place of residence. See the annotation 25 A. L. R. 354 and West’s Digest System, Husband and Wife, Key No. 19 (18) for many such cases. We have held that the Utah statute which makes the spouses liable for “expenses of the family” is broader than the common law term “necessaries” for which the husband was liable, Berow v. Shields, 48 Utah 270, 159 P. 538. In the case of Read v. Read, 119 Colo. 278, 202 P. 2d 953, the court held the husband liable for attorney’s services in defending his wife on a charge of murdering her child when he was suing her for divorce on the same grounds. The case is not exactly in point, but the court expressed what appeals to me as a very enlightened view of the wife’s need for legal services and the . right of the attorney is to sue the husband for them. 202 P. 2d at page 957, it stated:
“The term ‘necessaries’ is incapable of exact definition; its meaning is variable, depending upon the circumstances, financial and otherwise, of the parties.”
¶10And also states:
«… such necessaries include … other articles for the wife’s protection in society … and such articles and things as are necessary for her sustenance as well as preservation of her health and comfort.”
¶11I think this more liberal view as to the necessity of attorney’s services is the correct one. It is also reflected in the case of Gosserand v. Monteleone, 159 La. 316, 105 So. 356, which is reported in connection with the latter annotation in 42 A. L. R. 310. In that case the court bases its decision *91on- the principle that inasmuch as the law lays down certain specific causes for divorce, and recognizes the right of the wife to institute and prosecute a suit for that purpose, that the right carries with it the privilege of employing counsel and states:
“we find therefore no sound reason in law or morals why the husband should not be required to . pay a reasonable fee to the counsel for the services rendered.”
¶12For the law to be otherwise would endow the wife with an empty right but afford her no remedy.
¶13Whether attorney’s services are “necessaries” or not depends somewhat upon the light in which we view them. I am not in accord with the idea that a
“divorce action is primarily a controversy between the husband and wife as to who is at fault in causing their domestic difficulties.”
¶14That may be true in some few instances where the parties are expressing their emotional imbalance by quarreling and bickering and washing their dirty linens in court. But it certainly should not be and actually is not the primary concern of the conscientious lawyer, the court, nor even the adult-minded and emotionally mature litigant. It is my observation that the majority are of this latter class. •There is confirmation of this in the fact that lawyers and their clients are able to reach amicable adjustments in most cases of domestic distress. This is so even where divorce is the ultimate answer; more than 90 per cent of the cases are presented by default on an arrangement for the court’s approval. In the entire process from the time the client first sees the lawyer, the parties themselves, the lawyers and the courts are not so much concerned with engaging in a contest as to who is at fault, which usually serves only to promote antagonisms and difficulties, as they are in getting some constructive solution thereto; some way to adjust the lives of the spouses and children to best serve *92their welfare and happiness. This sometimes involves reconciliation; sometimes divorce.
¶15We regard marriage as a sacred institution, as the foundation of the social structure. It certainly does not strengthen it to lay down a rule that a lawyer into whose hands its fate is entrusted can obtain compensation for his services if a divorce is granted, but if a reconcilation is had, he cannot.
¶16r The law and legal services, especially in the field of domestic relations, is inextricably entwined in the warp and woof of life. As we learn more about our human selves a,nd how to deal with our problems, the law is becoming more and more a social science. The lawyer in his proper function is, in a sense, a doctor to the heart and the emotions. In the event of serious family trouble, the counsel of a competent, conscientious well-trained and experienced lawyer may well be the very salvation of a marriage and the family unit. Circumstances can be such that no service is more essential to its well being.
¶17■In this case, the husband filed the divorce action, evicted the wife from the home and kept her baby from her. She was without funds. If under such circumstances, she could not pledge her husband’s credit, how much closer to “East ■Lynne” could we get? It is difficult for me to reconcile a ruling that the attorney’s services are not “necessaries” with the fact that courts uniformly hold that the services of a doctor, plumber, merchant, and tradesman are “necessaries.”
¶18For the reasons stated, I think the lower court properly allowed recovery for attorney’s fees rendered in connection with the divorce case and that the entire judgment should be affirmed.