Morris v. Bruce, 37498

• Decision Date: 15 January 1959
• Docket Number: No. 37498,No. 2,37498,2
• Citation: 98 Ga.App. 821,107 S.E.2d 262
• Parties: C. C. MORRIS, Jr., v. Gladys BRUCE
• Court: Georgia Court of Appeals

Page 262

107 S.E.2d 262

98 Ga.App. 821

C. C. MORRIS, Jr., v. Gladys BRUCE.

No. 37498.

Court of Appeals of Georgia, Division No. 2.

Jan. 15, 1959.

Syllabus by the Court.

The petition in this case, being a suit to recover for necessities of life and services furnished to the plaintiff's daughter from whom the defendant had obtained a divorce on the ground of incurable insanity, not alleging an express contract or facts showing an implied contract between the plaintiff and the defendant for the payment for such services, and, therefore, the presumption that the plaintiff rendered such services and furnished such necessities of life to her daughter on account of her sense of maternal love and affection prevailing, failed to state a cause of action, and the trial court erred in overruling the general demurrer to the petition.

Mrs. Gladys Bruce sued C. C. Morris, Jr., and in her petition alleged substantially the following facts: that the defendant was indebted to the plaintiff $199.13 for services, food, clothing and shelter, including bed, board, medical attention, medicine, and the other necessities of life alleged to have been furnished to the plaintiff's daughter, Evelyn Morris, by the plaintiff; that the said Evelyn Morris formerly had been married to the defendant but that a divorce had been granted on the ground that the said Evelyn Morris was hopelessly and incurably insane; that at the time of said divorce, the State Evelyn Morris was an inmate at the State Hospital at Milledgeville, Georgia, but that on or about the first day of August, 1956, she was released from the hospital and returned to the plaintiff's home where the services and necessities sued for were furnished to her; and, that the defendant was obligated under the law to support the said Evelyn Morris notwithstanding the divorce. The defendant filed general and special demurrers to the petition and an answer to which the plaintiff filed general and special demurrers. The trial court overruled all of the demurrera to the petition and sustained all of the demurrers of the plaintiff to the defendant's answer. That judgment was appealed to the Appellate Division of the Civil Court of Fulton County and was there affirmed. The exception here is to that judgment.

Merrell Collier, Atlanta, for plaintiff in error.

Harold Sheats, William C. Rimmer, Jr., Atlanta, for defendant in error.

CARLISLE, Judge.

'Ordinarily, when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof; but this presumption does not usually arise in cases between very near relatives.' Code, § 3-107. In this case, in order for a recovery by the plaintiff to be authorized against the defendant for any sum for services in the nature of care and attention for the furnishing of necessities to the plaintiff's daughter, 'it must affirmatively appear either that the services were rendered under an express contract that the plaintiff was to be paid for them or the circumstances must plainly indicate that it was the intention of both the plaintiff and the defendant that compensation should be made, and negative the idea that the services were performed [and the necessities furnished] merely because of the natural sense of duty, love and affection which arises out of the relationship existing between' the plaintiff and her daughter to whom the services were furnished. Alred v. Alred, 36 Ga.App. 748, 138 S.E. 445. Unless the petition shows an express contract between the plaintiff and the defendant, or a contract implied in fact, or alleges facts and circumstances which if proved would authorize a jury to find that there was an understanding between the plaintiff and the defendant that the plaintiff was to be compensated by the defendant for the services and necessaries furnished the plaintiff's daughter, the general demurrer should be sustained. Brooks v. Sims, Executrix, 54 Ga.App. 71, 187 S.E. 254; Cooper v. Cooper, 59 Ga.App. 832, 2 S.E. 145; Fortner v. McCorkle, 78 Ga.App. 76, 50 S.E.2d 250; Hudson v. Hudson, 90 Ga. 581, 16 S.E. 349; Murrell v. Studstill, 104 Ga. 604, 30 S.E. 750; Phillips v. Owens, 135 Ga. 500, 69 S.E. 705; and, see Annotation 7 A.L.R.2d 8-191, citing numerous cases.

The trial court in this case and the appellate division based their decision overruling the general demurrers on the theory that the plaintiff in this action is merely seeking to enforce the obligation of the husband to furnish his wife with necessities (Code, §§ 53-508, 53-510), which obligation is preserved notwithstanding the divorce under the provisions of the Act of 1951 (Ga.L.1951, pp. 744, 745; Code Ann. § 30-102(11)). It is true, of course, that the divorce standing alone in this case did not relieve the husband of his duty to support his wife. However, his liability to third persons furnishing her with...