Mackey v. Shreckengaust, 16932.
| Decision Date | 05 May 1930 |
| Docket Number | No. 16932.,16932. |
| Citation | 27 S.W.2d 752 |
| Court | Missouri Court of Appeals |
| Parties | MACKEY v. SHRECKENGAUST. |
Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.
"Not to be officially published."
Suit by J. F. Mackey against Douglass Shreckengaust. From a judgment for plaintiff, defendant appeals.
Reversed.
Frank J. O'Leary, of Kansas City, for appellant.
Thomas E. Joyce, of Kansas City, for respondent.
This is a suit to recover the reasonable value of physician's services to an infant. The defendant appeared in the circuit court by attorney, whereupon the plaintiff asked the court to appoint defendant's father as guardian ad litem. The attorney for defendant objected to the appointment. The plaintiff's evidence is to the effect that the defendant had appendicitis and was taken by the family physician to a hospital. The defendant's father sought to make arrangements with a surgeon to perform the operation, but this surgeon demanded payment of $150 in cash, which the father was unable to pay. The family physician said he thought he could get a surgeon to perform the operation for the same amount upon a contract for the payment of monthly installments. He then communicated with the plaintiff, who is a surgeon, and who came to the hospital and there made arrangements with the father to perform the operation and to receive his fee in monthly installments. There is no evidence that any agreement was made with the defendant. Defendant offered a demurrer to the evidence at the close of plaintiff's case which was overruled. He stood upon the demurrer and offered no evidence. Judgment went against him, a motion for new trial was overruled, and defendant has appealed.
Opinion.The father is liable for necessaries furnished to his infant child. He was not the agent nor the apparent agent to contract on the part of the defendant. The evidence does not indicate that he attempted to do so; but rather that he contracted to bind himself. Under such circumstances the father is liable but the child is not, even though the charge is for necessaries furnished to the infant. Tharp v. Connelly, 48 Mo. App. 59. To hold an infant liable for the reasonable value of necessaries furnished to him it must be shown that they were furnished upon his credit and not upon the credit of others. 31 C. J. 1076. Respondent claims that this case was tried in the circuit court on the theory that the only issue involved was the amount of the debt and who was the creditor. This is based upon the fact that defendant's attorney during the trial, in answer to an inquiry by the court as to whether the operation was successful, said: "Yes, there is no question about that; it is only a question of how much we owe and who...
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... ... 275, headnote 5.] The Collins case, on the point, has been ... cited with approval in Mackey v. Shreckengaust (Mo ... App.), 27 S.W.2d 752; Stolte et al. v. Larkin (8 ... Cir.), 110 F ... ...
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...authority to the effect that a party cannot be compensated unless the items were furnished on the infant's own credit. Mackey v. Shreckengaust, 27 S.W.2d 752 (Mo.App.1930). In this state, however, the rule is that no express promise need be made by anyone and that a promise will be implied ......
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Dalton v. Bundy, WD
...a person has provided necessaries to a minor in reliance upon the minor's credit and not upon the credit of another. Mackey v. Schreckengaust, 27 S.W.2d 752 (Mo.App.1930) is a case in point. There an infant was held not liable for medical services contracted for by the infant's Furthermore,......