Cole v. Wagner

• Decision Date: 13 November 1929
• Docket Number: 408.
• Parties: 197 N.C. 692, 71 A.L.R. 220 v. WAGNER et al. COLE et al.
• Court: North Carolina Supreme Court

150 S.E. 339

197 N.C. 692, 71 A.L.R. 220

COLE et al. v. WAGNER et al.

No. 408.

Supreme Court of North Carolina

November 13, 1929

Appeal from Superior Court, Guilford County; Walter E. Moore, Judge.

Action by J. H. Cole and the Atlantic Bank & Trust Company and others, trustees, against Harris Mangum Wagner and his guardian, Mrs. Frances C. Wagner. From a judgment dismissing the action, plaintiffs appeal. Reversed.

Reasonable value of service rendered to injured infant by hospital held for jury under pleadings.

This is an action brought by plaintiffs against the defendants to recover the sum of $2,534.50 and interest from March 13 1928. The plaintiffs are the owners of the Wesley Long Hospital in Greensboro, N.C. The defendant Harris Mangum Wagner is a minor about 12 years of age; his mother, the defendant Mrs. Frances C. Wagner, was appointed guardian after the time her son received the attention hereinafter mentioned in the Wesley Long Hospital.

Plaintiffs in their complaint allege: That about the 27th day of August 1926, Harris Mangum Wagner was seriously injured, and in order to save his life and usefulness that it became necessary that he receive hospital, medical, and surgical attention, and he became an inmate of the said hospital, and received such attention between said date above mentioned and the 13th day of March, 1928, and the reasonable value of said attention was $2,534.50. An itemized statement showing what the amount was for, is attached to the complaint. That at March term, 1928, the said Harris Mangum Wagner recovered judgment in the superior court of Lee county in the sum of $4,500 as damages for the said injury for which the beforementioned treatment was rendered. That said judgment has been paid to defendant guardian. That said hospital medical, and surgical treatment rendered by the plaintiffs was a material and substantial portion of the consideration for the rendition and payment of said judgment. That Frances C. Wagner is the duly qualified and acting guardian of Harris Mangum Wagner, and as such guardian has or is entitled to the $4,500 damages in payment of the judgment for the personal injury to the said Harris Mangum Wagner.

The defendants in their answer admit most of the material allegations of the complaint, but allege: That, when Harris Mangum Wagner was admitted to the hospital, he was living with his parents. That the son was treated at the hospital at the request of the company through whose negligence he was injured. Plea of infancy is set up, and, in regard to the bill rendered, says: "The defendant Frances C. Wagner *** does not consider the bills rendered in this case reasonable, but, on the contrary, they are exorbitant and excessive."

The court below found "at the time of the matters and things set out in the complaint [Harris Mangum Wagner] was then and now is living with his father, who was and now is supporting him." This was admitted by plaintiffs. The defendants moved for judgment upon the pleadings and that the action be dismissed. The court below granted the motion, and the plaintiffs excepted, assigned error, and appealed to the Supreme Court.

K. R Hoyle, of Sanford, and Hoyle & Harrison, of Greensboro, for appellants.

King, Sapp & King, of Greensboro, and Gavin & Teague, of Sanford, for appellees.

CLARKSON J.

The defendants' motion was in the nature of a demurrer ore tenus, on the ground that "the complaint does not state facts sufficient to constitute a cause of action." C. S. § 511(6). The complaint must be liberally construed, ""with a view to substantial justice between the parties." C. S.§ 535; Lee v. Caviness Produce Co., 197 N.C. 714, 150 S.E. 363. "An objection that the complaint does not state a cause of action may be taken advantage of at any time. In such case the defendant may demur ore tenus, or the Supreme Court of its own motion may take notice of the insufficiency. Johnson v. Finch, 93 N.C. 205; Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; McDonald v. MacArthur, 154 N.C. 122, 69 S.E. 832." Lassiter v. Adams, 196 N.C. at page 712, 146 S.E. 808.

We lay down certain principles of law and equity that are applicable to the facts set forth in the complaint and appear of record. "As the general rule applicable to contracts is that the infant is not liable thereon, so the general rule in the law of torts is that he is liable." 14 R. C. L. part § 36, p. 259; Smith v. Kron, 96 N.C. 392, 2 S.E. 533; Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261; Hight v. Harris, 188 N.C. 328, 124 S.E. 623; Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177.

To the general rule that an infant is not liable on contract is the well-recognized exception that he is liable for necessaries. The serious question often arises: What are necessaries? "Medical and dental services reasonably required by the infant are usually classed necessaries." 14 R. C. L. p. 256.

In Freeman v. Bridger, 49 N.C. at page 2, 67 Am. Dec. 258, Pearson, J., speaking to the subject: "Lord Coke says (Co. Lit. 172, a): 'It is agreed by all the books that an infant may bind himself to pay for his necessary meat, drink, apparel, physic and such other necessaries.' These last words embrace boarding; for shelter is as necessary as food and clothing. They have also been extended so as to embrace schooling, and nursing (as well as physic) while sick. In regard to the quality of the clothes and the kind of food, etc., a restriction is added, that it must appear that the articles were suitable to the infant's degree and estate." Richardson v. Strong, 35 N.C. 106, 55 Am. Dec. 430; Hyman v. Cain, 48 N.C. 111; Jordan v. Coffield, 70 N.C. 110; Turner v. Gaither, 83 N.C. 357, 35 Am. Rep. 574; 14 R. C. L. p. 256; Elliott on Contracts, vol. 1, § § 297, 298.

It is also said in the Freeman Case, supra, at page 4: "While an infant lives with a parent he cannot bind himself even for necessaries, unless it be proved that the parent was unable or unwilling to furnish the child with such clothes, etc., as the parent considers necessary, 'for no man shall take upon himself to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom.' Bainbridge v. Pickering, 2 Blackstone's Rep. 1325. 'Guardians for infants are presumed to furnish all necessaries, and a stranger who furnishes board, or anything else, must, except under peculiar circumstances, take care to contract with the guardian.' State v. Cook, 12 Ire. Rep. [34 N. C.] 67." See Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A. L. R. 428.

The next serious question is that ordinarily the father is liable for the necessaries of his infant child. In Smith v. Young, 19 N.C. at page 27, it is said: "The law is, if an infant is living under the roof of his parent, who provides everything which in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such articles as might, under other circumstances, be deemed necessaries. *** But here the defendant did not live under the roof of his parent, but lived apart from him, laboring, and receiving the profits of his labor to his own use. He was pro tempore acting as his own man, by the assent of his father; and the articles received by him, being necessaries, should be paid for by him." As to the liability of lunatics on contracts, see Wadford v. Gillette, 193 N.C. 413, 137 S.E. 314; Farmers' & Merchants' Bank v. Duke, 187 N.C. 386, 122 S.E. 1, 34 A. L. R. 215.

In 31 C.J. part § 174, at page 1077, the law is stated: "As a rule the parent is liable for the support of his child, and the guardian for the support of his ward. Consequently, an infant who has a parent or guardian, or one who stands in loco parentis, who provides him with everything that appears to be necessary and proper, cannot bind himself to a stranger even for necessaries. Where the parent has the ability and is willing to support his minor child, board, lodging, etc., furnished to such infant by another without the parent's consent are not necessaries for which the infant is liable. But the mere fact that an infant has a father, mother, or guardian does not prevent his being bound to pay for what was actually necessary for him when furnished, if neither his parents nor guardian did anything toward his care or support."

The next serious question is when money is received that in equity and good conscience belongs to another. In 41 C.J. p 33, § 9, it is said: "The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong. All plaintiff need show is that defendant holds money which, in equity and good conscience, belongs to him; but if he fails to show such superior right--that is, that defendant does hold money which so belongs to plaintiff--he cannot recover." Section 14: "Where one person has received money as an indemnity in which another has the right to share, the latter may maintain an action for money had and received for his portion." Section 18: "Although it is held that to support an action for money had and received there must be some privity between the parties in relation to the money sought to be recovered, the preponderance of authority is to the effect that no further privity is required than that which results from one person's having another's money, which he has no right conscientiously to keep, as in such cases the law implies a promise that he will pay it over." Section 34: "It is immaterial how the money may have come into defend...