Opinion
No. 28105.
March 20, 1951. Rehearing Denied April 20, 1951.
APPEAL FROM THE CIRCUIT COURT, CAPE GIRARDEAU COUNTY, R. B. OLIVER, III, J.
J. Grant Frye, Cape Girardeau, for appellant.
R. P. Smith, Cape Girardeau, for respondent.
This is an action by plaintiff, a dentist, to recover the sum of $92 which is alleged to be the reasonable value of certain dental services rendered to defendant's minor child at the request of the child's mother who is defendant's divorced wife. Recovery is sought from defendant upon the theory that the dental services in question constituted necessaries for which he, as the child's father, was obligated to pay.
Originating in the magistrate court, the case went on appeal to the circuit court, wherein, upon a trial to the court without a jury, judgment was rendered for plaintiff, and against defendant, for the sum of $92 as prayed. Following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
The controversy between defendant and his divorced wife over the custody and maintenance of their minor child is one with which this court is not all unfamiliar. Two different appeals in the matter have already been disposed of by the court, the one reported as Perr v. Perr, Mo.App., 205 S.W.2d 909, and the other as Perr v. Perr, Mo.App., 227 S.W.2d 490. Two additional appeals are now under submission awaiting decision. Suffice it to say that by force of circumstances the mother has had the child in her custody for the greater part of the time since the entry of the divorce decree on March 10, 1944; and it now appears that she has the child with her in Wisconsin, to which state she has removed with her present husband, one Green, to whom she was married on November 4, 1945. Her former domicile was in Cape Girardeau, Missouri, where she obtained her divorce from defendant in the Cape Girardeau Court of Common Pleas. The child, a boy, is now eight years of age.
The child was born with a harelip and cleft palate which has required surgical care to relieve the affliction.
Prior to the divorce the parents entered into a separation agreement by the terms of which defendant agreed, among other things, to pay all the costs and expenses of any additional operation or operations that might be necessary on account of the child's deformity. The child had already been given certain preliminary treatment, but the parents had been advised that something further would be required in order to effect a permanent cure. Defendant also agreed to pay the sum of $15 a month for the child's maintenance; and in entering its decree the court awarded the mother the custody of the child and fixed defendant's obligation for its maintenance at the stated amount. Following the entry of the decree all the payments were regularly made by defendant except during certain periods when appeals were pending in this court from decisions of the lower court on motions to modify.
Plaintiff maintains her office in the City of St. Louis and specializes in dental work for children. The child in question was referred to her by the surgeon who had performed the operations to repair the deformity, and was brought in from Cape Girardeau by its mother, who was then married to Green. Plaintiff first saw the child on October 24, 1947, and her services for which she seeks to be compensated were rendered between that date and March 2, 1948. There were thirteen cavities to be filled in addition to an abscessed tooth that required treatment. Because of a malformation of the dental arch which affected the alignment of the teeth, she referred the child to an orthodontist. The court found that the work plaintiff did was necessary, and that her charges were reasonable.
It appears from the record that defendant did not know plaintiff and had had no communication with her respecting the work she did for the child. On the contrary, the first information he had regarding her connection with the case was when he received a bill for her services in January, 1949.
At the close of the evidence defendant moved the court to render judgment in his favor upon the ground that plaintiff had not shown sufficient facts to constitute a cause of action against him. The court overruled his motion and rendered judgment against him; and the propriety of that judgment is the matter in issue on this appeal.
In opposing plaintiff's right to recover for the services she rendered, defendant argues that the decree of the divorce court requiring him to make monthly payments for the maintenance of the child was conclusive upon the extent of his obligation for the child's support until such time as the decree might be modified, and that the whole theory and purpose of a fixed award would be defeated if either the mother or a volunteer should be permitted to impose a liability upon him other than that imposed by the decree.
If this action had been brought by the child's mother to recover for money she had personally expended in obtaining dental services for the child, it might well be argued that in such controversy between her and defendant, the provision made by the court's decree was to be regarded as having fixed the measure of defendant's liability to her for the child's maintenance, and that if the payments required by the decree were inadequate, her remedy, before making any expenditure, would have been to apply to the court for a modification of the decree upon the showing of a change in the child's condition which had made it necessary that dental services be procured. However this action is by plaintiff, the dentist rendering the services, who is not a party to the decree, and is therefore in no sense concluded by it. Neither is plaintiff entitled to any possible benefit to be derived from the terms of the separation agreement, which was purely a contract between the parents of the child; and if she is to recover in this action, it must be solely on the strength of defendant's common-law liability.
A father's liability to a third person for necessaries furnished his minor child is not affected by the fact that the custody of the child has been awarded to the mother. But in any event his liability is founded upon the theory of authorization; and in the absence of an express promise to pay, there must be a showing of circumstances from which a promise may be implied.
Except for an emergency which renders a third person's immediate interference both reasonable and proper, an implied promise to pay for necessaries must depend upon the father's failure or refusal to supply them; and where he is ready and willing to make suitable provision for his child, there can be no recovery by a third person who has furnished the necessaries without his express authority. In other words, the basis of the father's liability is his omission to fulfill his obligation of supporting his child; and a stranger who furnishes articles or renders services to the child does so at the peril of being able to show that they were furnished under such circumstances as to have imposed a duty on the father to pay for them. Consequently the volunteer who undertakes to recover from the father has the burden of establishing, not only that the articles he furnished or the services he rendered were in fact necessary, but also that the father had been guilty of a manifest dereliction in failing to supply them. Rapoport v. Hussey, Mo.App., 267 S.W. 68; 67 C.J.S., Parent and Child, § 16 (3) (a); 39 Am.Jur., Parent and Child, sec. 52.
In this case it is to be borne in mind that except for a total of about ten days, the child had been in the exclusive possession of its mother from the time of the granting of the divorce in March, 1944, until it was taken to plaintiff for dental services in October, 1947. We do not pretend to say that even a divorced wife may not, in legal effect, pledge her former husband's credit for necessaries furnished their minor child when he himself has failed and refused to provide them. The implied authorization which fixes the father's liability may as well be extended through the fiction of the mother's agency as in any other manner. But however the occasion for the third person's intervention may arise, one must inevitably have regard for the proposition that there can be no foundation for a claim of implied authorization unless it be shown that the father has failed and refused to provide whatever necessaries may be required. Here any such evidence is entirely lacking. While it would doubtless not be contended that the services which plaintiff rendered did not fall within the category of necessaries, there is nothing to indicate that the child's need for such services had ever been brought to defendant's attention, or that he had been given any opportunity whatever to see that proper provision be made, as, for instance, by the selection of a competent dentist of his own choosing in his own locality. Instead it was an admitted fact that the first information he had of the matter was when he received the bill from plaintiff long after the services had been performed. Under all the circumstances there was a failure of proof upon the fundamental ground of liability; and defendant was right in asking the court to render judgment in his favor.
It follows for the reasons stated that the judgment of the circuit court should be reversed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.