Rose Funeral Home, Inc. v. Julian

• Decision Date: 23 November 1940
• Citation: 144 S.W.2d 755,176 Tenn. 534
• Parties: ROSE FUNERAL HOME, Inc., v. JULIAN.
• Court: Tennessee Supreme Court

144 S.W.2d 755

176 Tenn. 534

ROSE FUNERAL HOME, Inc., v. JULIAN.

Supreme Court of Tennessee.

November 23, 1940

Error to Circuit Court, Knox County; Hamilton S. Burnett, Judge.

Action by the Rose Funeral Home, Inc., against Zac Julian to recover the amount of funeral expenses incident to burial of defendant's deceased child. Judgment affirming a judgment of dismissal, and plaintiff brings error.

Reversed and judgment entered for plaintiff.

Hartman Lockwood & Carson and S.E. Hodges, all of Knoxville, for plaintiff in error.

John M Kelly, of Knoxville, for defendant in error.

GREEN Chief Justice.

This suit was brought by an undertaker to recover from a child's father funeral expenses incident to the burial of the child. The court of general sessions dismissed the suit and its judgment was affirmed by the circuit court. The case was tried on a stipulation of facts and the appeal was taken directly to this court.

The stipulation shows that the father and mother of the deceased child were divorced on March 12, 1935. By the decree of divorce the custody of the child was given to the mother and the father directed to contribute $8 a month to the child's support. He made these payments as ordered until the child's death.

In November, 1938, the little girl, then about three years of age, died of diptheria. The mother went to the plaintiff and contracted for the burial services. The charge for the same was $171. She told plaintiff that she had insurance on the child, that she would pay the bill, and further told plaintiff that her former husband "was to have nothing to do with the arrangements for the funeral or with the expense thereof."

The child's father, the defendant herein, never had any dealings with the plaintiff nor did he authorize anyone to incur any obligation binding him for the funeral expenses. He did attend the funeral. After the funeral, the mother instructed the plaintiff "to tell no one, and particularly not to tell her former husband, about the funeral bill since she did not want her ex-husband to know about it or have anything to do with the payment of it."

The mother has collected $200.10 on the policy she carried on the child's life. She turned this sum over to her attorney, Mr. A. J. Hartman, of the Knoxville Bar, who now holds it for her. Out of this sum the attorney has paid a druggist bill amounting to $32.94. A doctor's bill amounting to $43 is unpaid. Both these bills were incurred by Mrs. Julian in connection with the child's illness.

The plaintiff has never taken any step or made any effort, except this suit, to collect the funeral bill from the father, but has looked entirely to the mother to pay the account. At the request of Mr. Hartman, mentioned above, the plaintiff authorized the bringing of this suit for the funeral bill against the father, "for the purpose of testing the question of the liability of the defendant, as the father, on an alleged implied contract for funeral expenses furnished his deceased minor child before the divorced mother might be required to pay the account under her express contract."

The stipulation further recites that both the father and mother "are ablebodied and capable of performing gainful work. *** Mrs. Eva Julian has been employed at mill work, her wages averaging $7.50 a week; and Zac Julian has been employed as a mercantile stock clerk, wages averaging $15.00 a week."

Counsel for the plaintiff presses upon our consideration a line of decisions such as Evans v. Evans, 125 Tenn. 112, 140 S.W. 745, Ann.Cas.1913C, 294; Graham v. Graham, 140 Tenn. 328, 204 S.W. 987, and Owen v. Watson, 157 Tenn. 352, 8 S.W.2d 484. The ruling of these decisions is that the father is primarily liable for the support of his minor children and that, where there is a divorce, the father still remains liable for the support of his children, even though their custody was awarded by the divorce decree to the mother. In none of these cases did the decree of divorce impose any specific obligation on the father for the support of the child awarded to the mother, as did the decree now under consideration.

Where the divorce decree awarding the custody of the child to the mother provides that the father shall contribute to its maintenance, it is logically held that such a decree relates merely to the relative rights and duties of the parents toward each other. Since the child is not a party to such suit, the child's rights as against the father are not affected. Connett v. Connett, 81 Neb. 777, 116 N.W. 658.

Whether such a decree is final, as between the father and mother, is said to depend upon its terms or upon the statute under which it is rendered. Conrad v. Conrad, 64 S.W. 674, 23 Ky.Law Rep. 1066; Stonehill v. Stonehill, 146 Ind. 445, 45 N.E. 600; Snover v. Snover, 13 N.J.Eq. 261, and other cases collected in a note, 12 Ann. Cas. 139.

In Tennessee, by section 8446 of the Code, when a perpetual or temporary separation between a husband and wife is decreed and an order made on the husband for a suitable support of the wife or child, it is provided that the order or decree is "to remain in the court's control; and, on application of either party, the court may decree an increase or decrease of such an allowance on cause being shown." The decree in this case having been entered since the adoption of the Code, it is of course controlled by this statute and the charge...