Herring v. Holden

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Herring v. Holden, 88 Ga.App. 212, 76 S.E.2d 515 (Ga. App. 1953)
• Decision Date: 14 May 1953
• Docket Number: No. 1,No. 34593,34593,1
• Parties: HERRING v. HOLDEN

Page 515

76 S.E.2d 515

88 Ga.App. 212

HERRING v. HOLDEN.

No. 34593.

Court of Appeals of Georgia, Division No. 1.

May 14, 1953.

Syllabus by the Court.

Where, in a suit brought against a husband on an account for medical and surgical services rendered to his wife, the uncontroverted evidence showed that the plaintiff had performed such services upon the credit of the defendant's wife alone and on her express promise to pay for the services, the presumption of the defendant's liability as a husband for necessaries furnished to his wife was rebutted and overcome as a matter of law; and, as the verdict for the plaintiff against the defendant was not authorized, the court erred in overruling the defendant's motion for a new trial.

George E. Saliba, Macon, for plaintiff in error.

Conaway & Smith and Walter Smith, Macon, for defendant in error.

SUTTON, Chief Judge.

Dr. William H. Holden sued L. F. Herring for $250 as the balance due upon an account for professional services rendered to the defendant's wife. A statement of the account attached to the petition was addressed to Mrs. L. F. Herring; it showed a charge of $300 for a naso-plastic operation on May 6, and a payment of $50 on May 26, 1952. In an amendment to his petition, the plaintiff alleged that the defendant and Mrs. Herring are husband and wife, and live together; that the medical services were procured by the defendant's wife as his agent, 'she being authorized by him so to do, and the same being necessary, and her said husband being legally responsible for said services.'

The defendant denied the indebtedness, and alleged in his answer that he did not enter into any agreement with the plaintiff for the services described nor for any services, and did not authorize, expressly or by implication, any other person to arrange, contract for, or incur on his behalf the obligation asserted against him by the plaintiff.

The defendant admitted that Mrs. L. F. Herring was his wife, but alleged that the naso-plastic operation was contracted for by her independently of him; that his wife sought the operation to improve the size and shape of her nose for better personal appearance and for better photographic effect incident to her profession as a model; that the defendant neither approved of nor consented to the operation and did not agree to pay for it, which was communicated to and well known to the plaintiff before the operation was performed.

The defendant also alleged in his answer that the operation performed upon Mrs. Herring did not result in the size and shape of nose contracted for by her; and that there was a total failure of consideration to support the plaintiff's claim.

The case was tried before a jury, which rendered a verdict for the plaintiff in the amount sued for. The defendant's motion for new trial as amended was overruled, and the exception here is to that judgment.

1. 'The husband shall be bound to support and maintain his wife, and his consent shall be presumed to her agency in all purchases of necessaries suitable to her condition and habits of life, made for the use of herself and the family. This presumption may be rebutted by proof.' Code, § 53-510. A husband is primarily liable, as under an implied contract, for necessary medical attention and professional services rendered to his wife, and even in the absence of his consent, except where there is an express contract by the wife to pay for such services, or an assumption of individual liability on the wife's part, exclusive of her husband's liability. Scott v. Simpson, 46 Ga.App. 479, 167 S.E. 920; Fincher v. Davis, 27 Ga.App. 494, 108 S.E. 905. In other words, the presumption of the husband's liability for necessaries furnished to his wife may be set aside by showing an express agreement, between the wife and the person furnishing the necessary goods or services, that the wife is to be personally liable therefor. Connerat v. Goldsmith, 6 Ga. 14; Bell v. Rossignol, 143 Ga. 150, 84 S.E. 542, L.R.A.1915D, 1184; Goodson v. Powell, 9 Ga.App. 497, 71 S.E. 765; Morrison v. Evans, 31 Ga.App. 256, 120 S.E. 430; Shaw v. J. P. Allen & Co., 34 Ga.App. 111, 128 S.E. 699; Morris v. Shaw, 44 Ga.App. 222(3), 160 S.E. 820; Alexander v. Duffee-Freeman Furniture Co., 52 Ga.App. 244, 183 S.E. 86; Butler v. Godley, 51 Ga.App. 784(3), 181 S.E. 494; Williams v. Stark, 75 Ga.App. 668, 44 S.E.2d 300. As stated in Morris v. Root, 65 Ga. 686(4), 'The contract of the wife for goods sold to her upon her own credit alone, is not binding on the husband, though the seller may have expected her to get the money from the husband.'

The plaintiff, Dr. Holden, testified that he practiced medicine and plastic surgery in association with Dr. William L. Barton; that he agreed to perform the operation for $300; that Mrs. Herring made a payment of $50 shortly after the operation and refused to pay the balance of $250 sued for; that he first met the defendant on the day of the operation, at the hospital, after the operation. 'I considered the operation necessary from the standpoint of her health. She agreed to pay for the operation. Her husband never complained about the fee. * * * I had no dealings with Mr. Herring. I never billed him for the operation. The charges entered on my records, which I brought with me, do not show the name of Mr. L. F. Herring. My dealings were with Mrs. Herring exclusively. Mrs. Herring did not mention her husband. I did not ask what kind of work he did. * * * Her husband never said that he would not pay for...