¶1In- this action, it already has been decided on evidence substantially as set forth in the bill of exceptions, that there was, or could be found to be, authority in the wife of the defendant to contract on his credit for the medical services under controversy. Vaughan v. Mansfield, 229 Mass. 352. That decision is decisive of the exception to the refusal to give the defendant’s first request, which is considered although Rule 45 of the Superior Court was not complied with.
¶2The remaining requests were properly refused. The second omitted all reference to the authority of the wife arising from the marital relation, or inferable from the evidence, and therefore was erroneous. Alley v. Winn, 134 Mass. 77. Lamson v. Varnum, 171 Mass. 237. Auringer v. Cochrane, 225 Mass. 273. The third was objectionable because it did not include any statement as to the effect of knowledge on the part of the husband, or as to the right of the wife to contract for the services. Vaughanv. Mansfield, supra.The remaining request as to the burden of proof was improper because it wholly ignored the question of the wife’s authority, and required an instruction that the plaintiff could not recover except upon the neglect or refusal of the defendant to provide necessary medical services.
¶3Exceptions overruled.