Culverhouse v. Atlanta Ass'n for Convalescent Aged Persons, Inc.
| Decision Date | 16 November 1972 |
| Docket Number | No. 47421,No. 2,47421,2 |
| Citation | 194 S.E.2d 299,127 Ga.App. 574 |
| Parties | George CULVERHOUSE v. ATLANTA ASSOCIATION FOR CONVALESCENT AGED PERSONS, INC |
| Court | Georgia Court of Appeals |
William J. Brennan, Jr., Atlanta, for appellant.
Smith & Brooks, Theodore E. Smith, Atlanta, for appellee.
Syllabus Opinion by the Court
In a suit against husband and wife, jointly, plaintiff-appellee secured a default judgment against the wife for services rendered to her. Thereafter, based on the default judgment, and an admission that the defendant was married to the wife and that the claim was for necessaries, a summary judgment was sought and obtained versus defendant-appellant.
Appellant-defendant alleges the trial court erred in granting appellee-plaintiff's motion for summary judgment when plaintiff failed to plead and prove both that its administrator was licensed and that it had a permit to operate a nursing home at the time the alleged debt was incurred by the defendant. The issues are (1) the extent to which the husband is bound by a default judgment against his wife, and (2) the validity of a summary jdugment obtained without alleging and proving that license requirements had been complied with.
1. In our view, no issue exists concerning the right of appellant-defendant to attack the default judgment against the wife because the husband is not bound by such judgment and the issues resolved therein are not res judicata as to him, leaving no requirement for him to attack such judgment.
It is clear that the consent of the husband to the agency of the wife for the purchase of necessaries is presumed (Code § 53-510), and that in general the husband is liable for necessaries furnished the wife when living separate from him (Code § 53-508). While the wife acts as agent in this instance and under this authority, any other agency requires proof of authority as in other cases. No evidence was presented to this court that the wife was authorized to act as agent for the husband in defense of the suit as against her. Jackson v. Menter Co., 20 Ga.App. 666, 93 S.E. 255; Durden et al. v. Maddox, 73 Ga.App. 491, 37 S.E.2d 219; Thompson v. Brown, 121 Ga. 814, 49 S.E. 740. The privity of husband and wife does not establish such latter type of agency.
Likewise, if the wife is acting as agent in contracting for necessaries, she does not bind herself personally. Mather-Groover Co. v. Roberts, 54 Ga.App. 398, 187 S.E. 913. She binds herself personally when she contracts on her own credit. Bryan v. Rich's, Inc., 122 Ga.App. 70, 176 S.E.2d 225; Manley v. Chamberlin-Johnson-DuBose Co., 41 Ga.App. 31, 151 S.E. 676. A judgment obtained against her by default will be presumed to be on her individual credit. Under these circumstances, the husband is not bound on the theory of agency but he could be bound jointly with her if the contract were made on the credit of both jointly. Therefore, appellee-plaintiff was not entitled to a summary judgment on this theory in the absence of proof that the husband contracted jointly with the wife. In this situation the judgment against the wife may have merged the whole action, although we do not decide this issue. See Almand v. Hathcock, 140 Ga. 26, 78 S.E. 345.
Plaintiff-appellee contends that the judgment against the wife is res judicata as to all matters against the husband on this cause of action citing as authority Hunter v. Embree, 122 Ga.App. 576, 178 S.E.2d 221. In the Hunter case, this court held that res judicata and estoppel of judgment are available only in a subsequent suit between the same parties or their privies. The instant case is not a subsequent suit, it is a joint suit where the husband and wife are jointly defendants.
2. Georgia law requires a permit to operate a nursing home (Ga.L.1964, pp. 499, 612; Code Ann. § 88-1905) and that a nursing home administrator be licensed (Ga.L.1968, pp. 1143, 1145; Ga.L.1970, pp. 573, 575; Code Ann. § 84-4903), and makes it a misdemeanor to violate such requirements (Ga.L.1964, pp. 499, 518; Code Ann. § 88-301).
It is uniformly held in this State, and elsewhere, that 'where the license required by the statute is not imposed only for revenue purposes, but requires registration or licensing primarily for the purpose of protecting the public from acts mala in se, or detrimental to good morals, or from improper, incompetent, or irresponsible persons, as in the case of unregistered or unlicensed druggists or physicians, their imposition amounts to a positive prohibition of a contract made without a compliance with and in violation of the the statute, and by implication renders such a contract void and unenforceable.' McLamb v. Phillips, 34 Ga.App. 210, 129 S.E. 570 and cases cited therein.
While the McLamb case dealt with a wage broker, in this State the rule also has been applied to industrial loan companies (Bayne v. Sun Finance, 114 Ga.App. 27(2, 3), 150 S.E.2d 311) real estate brokers (Webster Cason & Associates v. Lackie, 114 Ga.App. 102, 107, 150 S.E.2d 321) peddlers (Singleton v. State, 14 Ga.App. 527, 81 S.E. 596) apothecaries (Taliaferro v. Moffett, 54 Ga. 150) and insurance companies (Jalonick v. Greene County Oil Co., 7 Ga.App. 309, 66 S.E. 815).
The licensing statute for nursing home administrators limits licenses to persons who: (a) are at least 21 years of age; (b) are of reputable and responsible character; (c) are of sound physical and mental health; (d) meet the standards and the criteria established by the board to evidence the applicant's qualification by training and experience to operate a nursing home; (e) satisfactorily pass a written and/or oral examination designed by the board to determine the qualifications of the applicant to operate a nursing home (Ga.L.1968, pp. 1143, 1145; Ga.L.1970, pp. 573, 575) Code Ann. § 84-4903. In McLamb, (34 Ga.App. p. 214, 129 S.E. p. 572), this court quoted with approval the following language "Where a statute enacts, for the purpose of securing a more effectual compliance with its requirements in respect to the licensing of certain occupations, that no one shall engage in or carry on any such occupation, until he shall have obtained a license as provided by the statute, it is an...
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