French v. Burlingame

• Decision Date: 21 February 1911
• Parties: FRENCH v. BURLINGAME
• Court: Missouri Court of Appeals

134 S.W. 1100

155 Mo. A. 548

FRENCH v. BURLINGAME

St. Louis Court of Appeals. Missouri.

February 21, 1911.

1. HUSBAND AND WIFE (§ 19)—PRIVILEGES OF COVERTURE—WIFE'S IMPLIED AGENCY.

A wife has an implied agency to pledge her husband's credit for necessaries for herself or his minor children.

2. PARENT AND CHILD (§ 3)—SUPPORT OF CHILD—NECESSARIES.

A father is liable for reasonable necessaries of life furnished to his minor children, whether they are procured by such children or his prior divorced wife.

3. PHYSICIANS AND SURGEONS (§ 21)—ACTIONS FOR COMPENSATION.

The subsequent death of one upon whom a surgeon performed a proper operation does not affect the surgeon's right to compensation.

4. PARENT AND CHILD (§ 3)—NECESSARIES— FATHER'S LIABILITY.

A husband who allowed his wife and their family physician to take his minor child to a city for treatment by a surgeon, and the two physicians found that the only hope of saving the child's life was an immediate operation, which was then properly performed, he is liable for the surgeon's fee, though the child died and the operation was without his knowledge and against his wishes, but of which latter fact the surgeon was uninformed.

Appeal from Circuit Court, St. Charles County; J. D. Barnett, Judge.

Action by Pinckney French against John Burlingame. From a judgment for plaintiff, defendant appeals. Affirmed.

Peers & Peers, for appellant. Wm. Waye, Jr., and Wilfley, McIntyre & Nardin, for respondent.

NORTONI, J.

This is a suit in quantum meruit for the reasonable value of professional services of a surgeon in performing an operation on defendant's infant child. Plaintiff recovered, and defendant prosecutes the appeal.

There is but one question for decision, and that relates alone to the sufficiency of the evidence in support of defendant's liability for the charge of $100 made against him by plaintiff for his services. It appears defendant resides together with his wife and family in Montgomery county, Mo. Plaintiff is a practicing physician and surgeon in the city of St. Louis. Defendant's little daughter, nine years of age, had been suffering some time with a liver trouble, and had been treated at home therefor by local physicians without success. She was finally brought to St. Louis by her mother and the family physician for treatment by Dr. French. Upon making an examination, plaintiff, Dr. French, and defendant's family physician, diagnosed the malady to be an abscess on the liver, and advised that an operation should be performed at once in order to permit the pus to escape, and thus save the patient's life. This fact was communicated to defendant's wife, who consented and agreed that the operation should be performed. In accord with her consent, the operation was performed at the hospital on the following day, and it is said as much as two quarts of pus were removed. The little girl succumbed a day or two thereafter, but it is conceded the operation was performed with skill and the death occurred from weakness resulting from the disease. Defendant is the father and resists payment of the $100 charge made by Dr. French solely on the grounds that the operation was performed without his knowledge or consent. It is conceded in the case that the operation was necessary in order to save the life of the child, but was, of course, a dangerous one in the then weakened and emaciated condition of the patient. It is in evidence on the part of defendant that he had objected to an operation before his wife left home with the child, and said that one should not be performed, but this fact was not communicated to Dr. French. It appears that he was informed only that the father objected to the child's being removed to St. Louis, but nothing was said to him about an objection to an operation if one were found to be necessary.

Defendant relies upon the case of Detwiler v. Bowers, 9 Pa. Super....