Phillips v. Home Undertakers, Case Number: 30960

• Decision Date: 08 June 1943
• Docket Number: Case Number: 30960
• Citation: 192 Okla. 597,138 P.2d 550,1943 OK 231
• Parties: PHILLIPS v. HOME UNDERTAKERS et al.
• Court: Oklahoma Supreme Court

1943 OK 231

138 P.2d 550

192 Okla. 597

PHILLIPS v. HOME UNDERTAKERS et al.

Case Number: 30960

Supreme Court of Oklahoma

Decided: June 8, 1943

Syllabus

¶0 1. PARENT AND CHILD--DIVORCE--Liability for burial expense of child under statutory provisions.

Burial expense is an "article necessary" for a child as that expression is used in 10 O. S. 1941 §13, providing for the liability of a parent to third persons furnishing such articles to a child under his charge, and is within the meaning of the words "support" and "maintenance" as those words are used in 12 O. S. 1941 §§ 1275, 1277, granting the court in divorce proceedings authority to provide for the support and maintenance of the minor children.

2. DEAD BODIES--Burial--Liability for expenses.

21 O. S. 1941 § 1158, imposing the duty of burying a dead body upon certain persons, does not place the ultimate liability upon a particular person for the expense of the burial unless the deceased left no estate, or there is no other person owing a prior duty to pay such expense.

3. DIVORCE-- Parent deprived of custody of child by divorce decree not liable for necessities furnished child.

Under 10 O. S. 1941 § 13, a parent, judicially deprived of the custody of a child by a divorce decree, is not, in the absence of an agreement, liable to third persons who furnish necessities to or for such child.

Appeal from Court of Common Pleas, Oklahoma County; Chas. W. Conner, Judge.

Action by the Home Undertakers against Walter W. Phillips and another. Judgment for plaintiff against named defendant, and he appeals. Reversed.

Whitten & Whitten, of Oklahoma City, for plaintiff in error.

John J. Carney, of Oklahoma City, for defendant in error Tina A. Phillips.

Walter L. Gray, of Oklahoma City, for defendant in error the Home Undertakers.

HURST, J.

¶1 Plaintiff, the Home Undertakers, sued the defendants, Walter W. Phillips and Tina A. Phillips, the father and mother of a minor child, to recover funeral expenses incurred incident to its burial. Upon trial to the court, judgment was rendered against Walter W. Phillips only, and he appeals.

¶2 In March, 1938, in an action against Walter for separate maintenance, Mrs. Phillips secured a decree in the district court of Oklahoma county awarding her the custody of the three minor children of the marriage, and decreeing that for the purpose of supporting the children she should have the exclusive right to manage and receive the income from all the properties belonging to Walter, therein specifically described. The cross-petition of Walter for a divorce in such action was denied.

¶3 In July, 1939, the parties were divorced by the district court of Oklahoma county. The decree did not mention the former judgment but awarded the custody of the children to the mother and approved a property settlement previously made between the parties which provided that Walter should convey to Mrs. Phillips all the properties covered by the previous decree, together with other properties and the home.

¶4 Neither the parties nor the court seem to have intended that the divorce decree should abrogate the provisions of the first decree. Both parties understood that the conveyances of the property covered by the first decree were for the benefit of the children. It was stipulated that Walter had conveyed the properties to Mrs. Phillips for the benefit of the deceased child and the two other children, and Mrs. Phillips testified that Walter had complied with all the orders of the district court made relative to child support.

¶5 In 1940, the child became seriously ill and Walter provided it medical and hospital care, for which he paid the sum of $553. Upon the death of the child, Mrs. Phillips made arrangements with the plaintiff for its burial. Both she and the plaintiff attempted to induce Walter to go to the plaintiff's establishment and incur the indebtedness himself, but he refused to do so, whereupon, at her direction, the funeral expense was charged to him.

¶6 It is apparent that there was no contract, either express or implied, upon the part of Walter to pay the expenses of burial. The question, then, is whether the duty is imposed upon him by law. The case, therefore, presents the single legal question of whether, under the laws of this state, in the absence of an agreement, a third person can recover from a father for the burial of his minor child, when by a decree of court the custody and control of the child has been taken from him and given to the mother, and the father has fully complied with all the orders of the court relative to the support of the child.

¶7 Determination of the question thus presented requires consideration of the following statutory provisions:

"The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability. 10 O. S. 1941 § 4.

"If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries and recover the reasonable value thereof from the parent." 10 O. S. 1941 § 13.

"When the parties appear to be in equal wrong the court may in its discretion refuse to grant a divorce... and... may for good cause shown make such order as may be proper for the custody, maintenance and education of the children...." 12 O. S. 1941 § 1275.

"When a divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action." 12 O. S. 1941 § 1277.

"If the deceased were not a married woman, but left any kindred, the duty of burial devolves upon any person or persons in the same degree nearest of kin to the deceased, being of adult age, and possessed of sufficient means to defray necessary expenses." 21 O. S. 1941 § 1158 (2).

1. We are of the opinion that funeral expense is a "necessary" as that term is used in the above statutes, the same as are food, clothing, or medical care, and that liability therefor is governed by the same rules which govern liability for other necessaries. 39 Am. Jur. 685; 20 R. C. L. 626; Colovos' Adm'rs v. Gouvas, 269 Ky. 752, 108 S. W. 2d 820; Bair v. Robinson, 108 Penn. St. 247, 56 Am. Rep. 198. We are also of the opinion that it is within the meaning of the words "support" and "maintenance," as those words are used in sections 1275, 1277, above, granting the court authority to make provision for the support and maintenance of the children in

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