Presbyterian Hosp. v. McCartha, 8326SC90

• Decision Date: 17 January 1984
• Docket Number: No. 8326SC90,8326SC90
• Citation: 310 S.E.2d 409,66 N.C.App. 177
• Court: North Carolina Court of Appeals
• Parties: The PRESBYTERIAN HOSPITAL v. Cornelius Eugene McCARTHA and Sally W. McCartha.

Page 409

310 S.E.2d 409

66 N.C.App. 177

The PRESBYTERIAN HOSPITAL v. Cornelius Eugene McCARTHA and Sally W. McCartha.

No. 8326SC90.

Court of Appeals of North Carolina.

Jan. 17, 1984.

Miller, Johnston, Taylor & Allison by Robert J. Greene, Jr. and Paul A. Kohut, Charlotte, for plaintiff-appellee.

Warren C. Stack, Charlotte, for defendant-appellant Sally W. McCartha.

PHILLIPS, Judge.

Although the order appealed from recites that judgment on the pleadings was being rendered against the defendant appellant, since it also recites that matters other than the pleadings were considered, it must be treated as an order of summary judgment, as Rule 12(c), itself, provides. This does not affect our decision, however, as the plaintiff was not entitled to judgment on either basis.

The case has been presented to us by both parties as though it depends upon our power or inclination to extend the common law doctrine of necessaries, which makes a husband liable for necessaries supplied to the wife, so as to hold the wife liable for necessaries furnished the husband. But we do not so consider the case, because under the circumstances of record the necessaries doctrine would not apply even if the services had been furnished to the wife and the hospital was attempting to recover from the husband. Thus, the question posed for our consideration by the parties will have to await an appeal that raises it, which this one fails to do. Nevertheless, we must say we are really at a loss to understand how it could be thought that the naked, unadorned allegations in the complaint that defendant jointly contracted for or requested the hospital services along with her husband, which were met by an answer categorically denying those allegations, raised the necessaries doctrine or entitled plaintiff to judgment on the pleadings.

In any event, "[t]he 'Doctrine of Necessaries' ... is used to hold a husband liable to merchants and other outside parties who have furnished necessaries to the wife. Necessities or necessaries 'are those things which are essential to her [a wife's] health and comfort according to the rank and fortune of her husband.' " Cole v. Adams, 56 N.C.App. 714, 715, 289 S.E.2d 918, 919-920 (1982), quoting 2 Lee, North Carolina Family Law § 132 (4th ed. 1980). The husband's liability, of course, is based upon his legal duty to support his wife; and when he fails or refuses to perform his duties and other persons provide the necessaries the husband can be held liable. 41 C.J.S.Husband and Wife § 50 (1944). But our law, with rare exceptions, has always permitted parties to make their own contracts; and when someone furnishes or sells anything to a party in reliance only upon that party's promise or credit, it is hornbook law that the creditor must look to the one contracted with, and nothing else appearing, cannot require others to pay when the one relied upon fails to do so. Thus, when anyone sells or furnishes necessaries to a married woman in her individual capacity, and in reliance upon her separate...