Opinion
4 Div. 722.
October 12, 1933. Rehearing Denied November 9, 1933.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Huey Huey, of Enterprise, for appellant.
It is the duty of the husband to maintain his wife. He is liable for her necessities, among which is medical attention. 30 C. J. 516, 589, 603. If the person for whose debt the undertaking is made be liable at all so that the whole responsibility does not rest upon the second promisor, the second promise is collateral and void by the statute of frauds if not reduced to writing. Code 1923, § 8034 (3); Puckett v. Bates, 4 Ala. 390; Boykin v. Dohlonde, 37 Ala. 577; Webb v. Hawkins L. Co., 101 Ala. 630, 14 So. 407; Fuller v. Gray, 124 Ala. 388, 27 So. 458; Pake v. Wilson, 127 Ala. 240, 28 So. 665; Shepherd v. Clements, 25 Ala. App. 7, 141 So. 250; 27 C. J. 132, 142, 144. Plaintiff had the burden of establishing that defendant's promise to pay for services rendered to another did not come within the statute of frauds. Jonas v. Field, 83 Ala. 445, 3 So. 893; Shepherd v. Clements, supra.
Beck Yarbrough, of Enterprise, for appellee.
Whether a physician suing defendant for medical services rendered a third party performed such services solely upon the credit of defendant is a question for the jury. If there be any evidence, however weak, from which an adverse inference may be drawn, the case cannot properly be taken from the jury. Curry v. Shelby, 90 Ala. 277, 7 So. 922; Weil v. Centerfit, 201 Ala. 531, 78 So. 885. The test is whether the promise was in fact made and intended as collateral or original, and it is the province of the jury to determine to whom the credit was given, taking into consideration all the circumstances. Boykin v. Dohlonde, 37 Ala. 577. Where all the circumstances of the transaction show an intent to create an original liability, a promise in that form will be held original and not within the statute. Day v. Adcock, 11 Ala. App. 471, 66 So. 911; Gates v. Morton Hdwe. Co., 146 Ala. 692, 40 So. 509. An oral promise to pay for medical services rendered to another is not within the statute, if such services are rendered at the request and on the sole credit of the promisor, or continued after partially rendered. Weil v. Centerfit, supra; Wellman v. Jones, 124 Ala. 580, 27 So. 416; 27 C. J. 144, 145. There could arise at any stage of the circumstances an original undertaking which would release the original liability if such existed. Smith Bros. v. Miller, 152 Ala. 485, 44 So. 399.
There is no question presented as to the admission or exclusion of evidence. The appellant contends that there was error in refusing the affirmative charges requested.
The material and controverted question of fact was whether the plaintiff physician rendered such services to defendant's daughter-in-law upon the credit of defendant. This was a jury question under the attendant circumstances and the reasonable inferences therefrom. Weil v. Centerfit, 201 Ala. 531, 78 So. 885; Wellman v. Jones, 124 Ala. 580, 27 So. 416; Curry v. Shelby, 90 Ala. 277, 7 So. 922. Nothing is plainer than the proposition that express and implied contracts differ in legal effect and result — not in the nature of the undertaking, but in the mode of proof. Most Worshipful Grand Lodge, etc., v. Callier, 224 Ala. 364, 370, 140 So. 557, and authorities. The test is whether the promise to pay was made, or to be reasonably implied, as original or collateral. This is within the province of the jury to infer and decide — whether the credit was in fact given on his promise to pay. Boykin McRae v. Dohlonde Co., 37 Ala. 577; Day v. Adcock, 11 Ala. App. 471, 66 So. 911, and authorities; 27 C. J. pp. 144, 145.
The basis of appellant's contention is that, since a husband is liable for medical services rendered his wife, the appellant father-in-law would not be solely responsible for the debt, and thus not liable since the promise made was not in writing. However, the position of the appellee is that an original promise arose out of the circumstances, which original undertaking is not within the statute of frauds. As stated, the intention of the parties as shown by the circumstances of the particular case is the true test of whether the promise is original or collateral; and there could arise at any stage of the circumstances an original undertaking which would release the original liability, if such existed.
In the case of Smith Bros. Co. v. Miller, 152 Ala. 485, 44 So. 399 it was held that, where goods were sold to third persons on their credit, yet if such third person was thereafter released from liability on account thereof on the promise of another to pay therefor, a new debt was created, against the promisor, and it was not within the statute of frauds. In the case at bar, it was a question for the jury as to whom the credit was extended for the medical services, and this issue was found in favor of the appellee.
We have examined the record; there are adverse and reasonable inferences that may be drawn by the jury on the question as to whom the credit was given, and whether or not there was a promise to pay by the defendant. There was no error in declining affirmative instructions requested by the defendant. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.