Opinion
38143.
DECIDED APRIL 5, 1960.
Action on account. Fulton Civil Court — Appellate Division. November 30, 1959.
John E. Feagin, for plaintiff in error.
Wilkinson Walker, A. Mims Wilkinson, Jr., contra.
1. Where a husband, under a temporary-alimony decree, is providing for the support of his family he is not liable to third parties for necessaries furnished his family.
( a) The question of what are "necessaries" is generally a question for the trior of facts.
DECIDED APRIL 5, 1960.
Frank A. Smith trading as Frank A. Smith Company, sued Mrs. Frances M. Hume, formerly Mrs. Joseph D. Cook, to recover an alleged balance due on an open account for labor and material furnished by the plaintiff in connection with certain yard work on property owned by the defendant. The trial court hearing the case without the intervention of a jury, rendered judgment for the plaintiff in the full amount sued for. The defendant's oral motion for new trial was denied and the defendant appealed to the Appellate Division of the Civil Court of Fulton County (the amount sued for being less than $300), where the judgment was affirmed. The defendant now excepts to the judgment of the Appellate Division of the Civil Court of Fulton County adverse to her.
The defendant's answer alleged in part: "For further answer the defendant says that the sum sued for is the legal obligation of her former husband, Joseph D. Cook, Defendant says that while she arranged for the items sued for to be furnished, she did so as the wife of Joseph D. Cook, and that the same were necessaries, and not an individual undertaking on the part of this defendant." There was no contention that the defendant was the agent of her then husband, other than as his wife, or that he would be liable for the materials and labor furnished other than because he was bound to furnish "necessaries" to the defendant. Therefore, unless the labor and materials furnished were "necessaries" for which the defendant's then husband was liable, the judgment of the Appellate Division of the Civil Court of Fulton County denying the defendant's motion for new trial must be affirmed.
The trial court held as to a part of the items sued for, six separate invoices being involved, that a temporary alimony decree was in effect and that under no circumstances "even if they were necessaries" would the defendants husband be responsible for that part of the work done while such temporary alimony decree was effective. See Code § 30-206 which provides that, where temporary alimony is awarded, the husband is not liable to third persons for necessaries furnished his wife and children. Accordingly, as to this part of the judgment of the trial court, the judgment was demanded.
The trial court, as the trior of facts, without the intervention of a jury found that the work done was for the improvement of real estate admittedly owned by the defendant. This finding was tantamount to a finding that the services and materials furnished were not "necessaries," and, since generally the question of what are "necessaries" is a question for the trior of fact (see McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792, and Geiger v. Worth, 17 Ga. App. 361, 86 S.E. 938), the finding of the trial court hearing the case without the intervention of a jury was authorized by the evidence and the Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial court denying the defendant's motion for new trial.
Judgment affirmed. Felton, C. J., and Bell, J., concur.