Mclean v. Jackson

• Decision Date: 21 December 1912
• Docket Number: (No. 4,392.)
• Citation: Mclean v. Jackson, 12 Ga.App. 51, 76 S.E. 792 (Ga. App. 1912)
• Parties: McLEAN. v. JACKSON.
• Court: Georgia Court of Appeals

76 S.E. 792

12 Ga.App. 51

McLEAN.

v.JACKSON.

(No. 4, 392.)

Court of Appeals of Georgia.

Dec. 21, 1912.

(Syllabus by the Court.)

1. Infants (§ 50^*)—Contracts—Necessaries.

A dentist may recover of a minor the value of dental services shown to have been necessary for the preservation of the minor's health.

[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 114, 115, 117-127; Dec. Dig. §

(Additional Syllabus by Editorial Staff.)

2. Infants (§ 50*) — Contracts — "Necessaries."

The question of what are "necessaries" for an infant depends largely upon his rank, social position, and like circumstances. Generally speaking, necessaries for an infant include support and maintenance, food, lodging, clothing, medical attendance, and education suitable to his station in life.

[Ed. Note.—For other cases, see Infants, Cent. Dig. §§ 114, 115, 117-127; Dec. Dig. § 50.*

For other definitions, see Words and Phrases, vol. 5, pp. 4693-4703.]

Error from Superior Court, Bibb County; N. E. Harris, Judge.

Action by A. M. Jackson against Hugh McLean. Judgment for plaintiff, and defendant brings error. Affirmed.

Napier & Maynard, of Macon, for plaintiff in error.

L. D. Moore, of Macon, for defendant in error.

POTTLE, J. Our statute provides that "contracts of an infant under twenty-one years of age are void, except for necessaries; and for necessaries they are not valid, unless the party furnishing them proves that the parent or guardian fails or refuses to supply the necessaries for the infant" Civil Code 1910, § 4233.

It is practically impossible to lay down any general definition of the term "necessaries" which will be applicable in all cases. That which is luxury to-day may become a necessity to-morrow. What is deemed necessaries for one person may not be for another. The question depends largely upon the rank, social position of the infant, or other like circumstances. Each case must stand upon its own peculiar facts. The question is ordinarily one of fact, to be determined by the jury. Generally speaking, necessaries for an infant include support and maintenance, food, lodging, clothing, medical attendance, and education suitable to his station in life. 22 Cyc. 593; Mauldinv. Southern Shorthand University, 126 Ga. 6S1. 55 S. E. 922, 8 Ann. Cas. 130; Keaton v. Davis, 18 Ga. 457; Raoul v. Newman, 59 Ga. 409. When one undertakes to supply an infant with articles or services which are claimed to be necessaries, he must at his peril ascertain that neither the parent, nor guardian, nor any one else, has supplied the infant, and that he is in actual need of the articles or services furnished. Nicholson v. Wilborn, 13 Ga. 467; Nicholson v. Spencer, 11 Ga. 607; Brown v. De Loach, 28 Ga. 486. In other words, the defense of infancy is always good, unless the plaintiff carries the burden of showing that the goods or services furnished were necessary, that the parent or guardian failed or refused to furnish them, and that the infant has not been supplied from any other source. In McAllister v. Gatlin, 3 Ga. App. 731, 60 S. E. 355, this court said that a contract with an infant for necessaries is not valid unless the parent or guardian "fails and refuses" to supply him with sufficient necessaries. This language was inapt. The statute is in the disjunctive. The need of the infant, and the failure or refusal of the parent or guardian to supply him are all that need appear. It is not necessary that an affirmative refusal by the parent or guardian, after knowledge of the necessity, be shown. This was expressly...