O'Brien v. Galley-Stockton Shoe Co.

• Decision Date: 03 June 1918
• Docket Number: 8997.
• Citation: 173 P. 544,65 Colo. 70
• Parties: O'BRIEN v. GALLEY--STOCKTON SHOE CO.
• Court: Colorado Supreme Court

173 P. 544

65 Colo. 70

O'BRIEN v. GALLEY--STOCKTON SHOE CO.

No. 8997.

Supreme Court of Colorado

June 3, 1918

Error to Fremont County Court; Kent L. Eldred, Judge.

Action by the Galley-Stockton Shoe Company against James O'Brien. Judgment for plaintiff, and defendant brings error. Affirmed.

D. W. Ross, of Canon City, for plaintiff in error.

Jeffrey & Stinemeyer, of Canon City, for defendant in error.

ALLEN J.

This is an action brought by the Galley-Stockton Shoe Company plaintiff below, against James O'Brien, defendant below to recover the sum of $31.05 alleged to be due on a bill principally for shoes claimed to have been furnished to the defendant's minor children. The cause was tried to a jury, and, after evidence was produced on behalf of each party and at the close of the testimony, the defendant moved for a directed verdict. The motion was denied, and thereupon the plaintiff moved for a directed verdict in its favor and against the defendant. The latter motion was sustained, and judgment was rendered in favor of plaintiff for the amount of its claim. The defendant brings the case here for review, and the principal question presented is whether or not error was committed in overruling defendant's motion and sustaining plaintiff's motion for a directed verdict.

It is claimed by the defendant in error, and denied by the plaintiff in error, that the defendant below is liable under the statute (section 3021, R. S. 1908; section 3460 Mills' Ann. Sts. 1912). The evidence is undisputed that, at the time the goods were furnished and used, the children, with their mother, the wife of defendant, were and had been living separate and apart and in a different house from the defendant. Under such circumstances, the statute above cited has no application in this case. Gilman v. Matthews, 20 Colo.App. 179, 77 P. 366; Denver Dry Goods Co. v. Jester, 60 Colo. 290, 152 P. 903, L.R.A. 1917A, 957. The controversy is therefore controlled by the principles of the common law, on which the plaintiff below also relied.

The rule at common law is thus stated in 29 Cyc. 1608:

'It is a necessary consequence of the duty to support the child that the parent may in a proper case be held liable for necessaries furnished to the child by a third person; but in order to hold a parent liable there must be either an express promise to pay or circumstances from which a promise can be implied, some clear and palpable omission of duty on the part of the parent, or some special exigency rendering the interference of such person reasonable and proper.'

It is conceded that there was no express promise on the part of the defendant to pay for the...