Opinion
29107.
DECIDED NOVEMBER 22, 1941.
Certiorari; from Fulton superior court — Judge Humphries. April 16, 1941.
Noah J. Stone, for plaintiff. Jared J. Bull, for defendant.
The evidence was insufficient to authorize the verdict for the plaintiff in the justice's court, in the full amount sued for.
DECIDED NOVEMBER 22, 1941.
Dr. L. S. Baldwin, a dentist, brought suit in a justice's court against O. B. Talley to recover an alleged balance due of $13.50 on account for professional services rendered. The itemized account shows an item charged against the defendant of $12.50 which was for a plate furnished in March, 1939. Judgment was rendered for the plaintiff for $13.70 and the defendant appealed to a jury in the justice's court. The evidence before the justice and the jury, as appears from the answer to the petition for certiorari, was as follows: The plaintiff testified: "On May 30, 1938, Mr. O. B. Talley came to see me in reference to fixing his teeth, and I gave him a price and extracted three of his teeth and charged him $3, this having been paid. Afterwards, in March, 1939, his two daughters came to my office and told me that they were Mr. O. B. Talley's daughters. She told me that she had lost her teeth in the commode, and that she wanted me to make some more. Having an account with her father for several dollars worth of work, and the account being satisfactory at present I did the work, and charged her father as she instructed. I rendered him a bill the first of every month for more than a year, and he did not deny it but told me he would pay if I would give him a little time, and in September I did some work for his sons, and made a $2 charge, and later I repaired a plate for his wife for a charge of $1.70. As to date he has paid me $5.50, and never refused to acknowledge the account until after I had threatened to sue him for the charges. I never knew that his daughter was married until I demanded payment one year after work was completed. He never denied this account until after suit was filed. This account is a just one, due and owing to me for the work and material as set out in the suit. A conversation I had with Talley, he told me that his daughter, the one I done the work for had ran away from home, and he went and got her and brought her back to his home, and that the man she ran off with was serving time. This account sued on is a true and correct account and is owing to me."
The defendant testified as follows: "In April, 1938, I received instructions from my Government to have certain dental work done, I went to Dr. Baldwin and he agreed upon a price, but I explained conditions and he agreed to do the work and let me pay along as I was able. He extracted three teeth for me and charged me $1 each. I paid this account, and I haven't had any other work done for myself. I carried my two little boys to him and he put two fillings in Bruce's teeth and one in Hoover's, charging me 50 cents each; my wife, unbeknowing to me, had some repair work done on her plate, and Dr. Baldwin charged me $1.70. Dr. Baldwin made the plate for my daughter in March, 1939, at the time she was married and not a member of my household. I did not authorize Dr. Baldwin to do the work and it is not my bill as she is a married woman. I have paid Dr. Baldwin a total of $6.50 on my account. The work on my teeth has never been completed as I am not financially able to have it done. Dr. Baldwin notified my superior officer that I refused to pay this account. I have paid for all the work that was authorized by myself."
There was introduced a certificate of the ordinary of Cobb County that "Randolph Fowler and Dorothy Talley were married July 27, 1938, by J. W. Mize, N. P. Ex.-Off. J. P."
The jury returned a verdict for the plaintiff in the sum of $13.70. The defendant petitioned for the writ of certiorari. The justice who had presided on the trial, in his answer to the petition, in addition to setting out the evidence in the case as above quoted stated as follows: "A subpoena was issued for Dorothy Talley, and she did not appear in court, and after making inquiry of her absence, Mr. O. B. Talley stated to the court . . that he had placed her in a convent in New Orleans, La. This subpoena was served by the court in person." The judge overruled the certiorari and the defendant excepted.
(After stating the foregoing facts.) A father is not liable for dental work charged to him by his daughter without his knowledge and consent, where at the time she is a married woman and not a member of his household. Ordinarily a father's obligation to pay for necessaries furnished to his children ceases when they reach majority. It appears from the evidence in this case that the defendant's daughter married on July 27, 1938, and that the dental work was rendered by the plaintiff in March, 1939. The defendant testified that his daughter was married at the time the plaintiff performed the services sued for, and was not then a member of his household. The defendant also testified that he did not authorize the plaintiff to do the work. The plaintiff did not testify to the contrary. He testified that after he had rendered the services he presented the bill to the defendant and that he agreed to pay therefor. This promise was made after the rendition of the services and there was therefore no consideration for it. Such promise did not amount to a ratification because it does not appear that the defendant when making the promise was acquainted with all the facts. Since it appears conclusively from the evidence that the defendant was not liable by law for the services which the plaintiff had rendered to the defendant's daughter, and the defendant did not himself contract with plaintiff to perform such services, it does not appear that the defendant authorized his daughter to have the work done on his account, and it does not appear that the defendant when he made the promise knew that the plaintiff had charged the bill to him. This promise, notwithstanding other facts appearing in the evidence, is not sufficient to authorize a conclusion by the jury that the defendant thereby admitted liability to the plaintiff for the services rendered to the defendant's daughter. It is true that there was in evidence the statement of the defendant that he had placed his daughter in a convent in New Orleans, and that the plaintiff also testified that the defendant told him this daughter had run away from home; that he went after her and brought her back to his home, and that the man she ran off with was "serving time." However, it does not appear whether this was before or after the performance of the dental work for the defendant's daughter. It has been held that, except in those jurisdictions where parents are required by statute to support a needy or indigent child or except in the case of a defective child, the father's legal duty to support his child ceases when the child comes of age, although the child continues to reside in the family; that the father as the head of the family is not generally liable for necessaries furnished its members, other than the wife and infant children, and that the fact that a physician came to the home of the father with his knowledge to attend his adult daughter in his house did not render the father liable for the physician's services. See Blachley v. Laba, 63 Iowa, 22 ( 18 N.W. 658, 50 Am. R. 724, and note); 20 R. C. L. 587, 588. It has also been held that the fact that a mother requested and urgently entreated a doctor "not to desert" her adult and married daughter did not render the mother liable for his services in the absence of an express promise at the time to pay for them. McGuire v. Hughes, 207 N.Y. 516 ( 101 N.E. 460, Ann. Cas. 1914C, 585, 46 L.R.A. (N.S.) 577, note). See Goss v. Harris, 117 Ga. 345, 349 ( 43 S.E. 734).
It follows that the evidence was insufficient to support the verdict in its entirety, namely the amount of $13.70. The verdict, however, in the sum of $1, was supported by the evidence, this representing the difference between the total amount sued for, $13.50, and the amount sued for as representing the value of the services to the plaintiff's daughter, $12.50.
The court erred in overruling the certiorari. The judgment is reversed, but direction is given that the court overrule the certiorari on condition that the plaintiff write off from the judgment all except $1, otherwise the certiorari will be sustained and a new trial granted.
Judgment reversed, with direction. Sutton and Felton, JJ., concur.