Russell v. Russell

• Decision Date: 21 May 1934
• Docket Number: 31231
• Citation: 170 Miss. 364,154 So. 881
• Court: Mississippi Supreme Court
• Parties: RUSSELL v. RUSSELL

154 So. 881

170 Miss. 364

RUSSELL v. RUSSELL

No. 31231

Supreme Court of Mississippi

May 21, 1934

Division A

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE Judge.

Suit by Mrs. Eva Russell against Grover C Russell. From a judgment of the circuit court affirming a judgment of the county court in favor of the plaintiff, the defendant appeals. Judgment affirmed.

Affirmed.

Dunn & Snow, of Meridian, for appellant.

We admit that the father is primarily liable for necessary medical treatment for his child. However, this liability is predicated upon contract either express or implied and where the facts are such as to negative contract then the parent is not liable.

The liability of the parents in England and this country are founded solely upon contract, express or implied.

Kelly v. Davis, 6 Am. Rep. 499.

An expressed promise or circumstances from which a promise by the father can be inferred is essential in all cases to bind him for necessaries furnished his infant child by a third person.

37 Am. Dig., Parent & Child, par. 36.

There are circumstances when a father is not liable for necessaries furnished his child. While our court has never had occasion to announce the law, in a case where a child has been taken from its father without justificacation and arbitrarily withheld from him, the court recognized the principle.

Lee v. Lee, 101 So. 345; Ramsey v. Ramsey, 23 N.E. 70.

There seems to be no conflict in the authorities that where a child is taken from his father without fault of the father, and withheld from him, the father is relieved of liability to the person so taking the child, for necessaries incurred in its behalf and while so held.

Johnson v. Coleman, 69 So. 318; Mihalcoe v. Holub, 107 S.E. 704, 130 Va. 425; Assman v. Assman, 179 S.W. 957, 192 Mo.App. 678; Miller v. Miller, 155 N.E. 712; Ramsey v. Ramsey, 23 N.E. 69; Hyde v. Leisenring, 65 N.W. 536; Corry v. Lackey, 63 N.W. 418; Bazeley v. Forder L. R., 3 Q. B. 559; Baldwin v. Foster, 138 Mass. 449; Weeks v. Merrow, 40, Me. 151; Angel v. McLellan, 16 Mass. 28, 8 Am. Dec. 118; Gotts v. Clark, 78 Ill. 229; Haskell v. Haskell, 194 N.Y.S. 428; Foss v. Hartwell, 138 Mass. 449, 60 Am. St. Rep. 366; Dodge v. Adams, 19 Pick. 429, 432; Bartley v. Richtmyer, 53 Am. Dec. 346; Shields v. O'Rielly, 36 A. 49; Glynn v. Glynn, 48 A. 105; Howell v. Solomon, 83 S.E. 609, 167 N.C. 588; Wheeler v. State, 100 N.E. 25; State v. Peebles, 99 S.E. 813-814; State v. Stone, 98 S.E. 333; State v. Lancaster, 133 S.E. 824; Pacific Gold Digging Co. v. Industrial Accident Commission, 194 P. 1, 184 Cal. 462; Iroquois Iron Co. v. Industrial Commission, 128 N.E. 289, 294 Ill. 106; Panther Creek Mines v. Industrial Commission, 130 N.E. 321, 296 Ill. 565; Dyer v. Helson, 103 A. 161, 171 Me. 203; 37 American Digest, Century Edition, Parent & Child, par. 37; Creeley v. Creeley, 155 N.E. 424.

Those things which might have been litigated, as well as those things actually litigated, in the first suit, are res judicata.

Deen et al. v. Board of Supervisors, 99 So. 563; Hardy v. O'Pry, 59 So. 73; Bates v. Streetland, 103 So. 432; Vinson et al. v. Colonial & United States Mortgage Co., 76 So. 827; Harrison v. Turner, 77 So. 528; Kimbrell v. L. & N. R. R., 48 So. 230; Von Zondt et al. v. Town of Braxton, 115 So. 557; Burkitt v. Burkitt, 33 So. 417; Home Insurance Co. v. Tate Mercantile Co., 78 So. 709; Chiles v. Champenois, 13 So. 840; Gross v. Todd, 47 So. 80; Pigford Grocery Co. v. Welch et al., 76 So. 745; Finch v. Dobbs, 72 So. 858; Fisher v. Browning, 66 So. 132; Williams v. Luckett, 26 So. 967; Miller v. Buckley, 38 So. 99.

C. B. Cameron, of Meridian, for appellee.

The father of this child and the man who by this appeal challenges the right of its mother to require him to defray the expense incident thereto, saw and visited his child in this hospital during this illness and gave no notice of his intention to deny liability for the services necessarily rendered to his offspring.

It will at once be observed that this suit involves expenses for which the father of this child is primarily liable and at no time was the same even remotely before the supreme court nor could the same have been adjudicated by that court.

Russell v. Russell, 128 So. 270.

Where a decree of divorce awards the custody of the minor children to the wife, but makes no provisions for their support, it is still the duty of the father to support them, unless under the law there is some reason why he should be relieved therefrom; and where the mother furnishes their support where no such reason exists, the father becomes her debtor to that extent, for which she may recover against him.

Lee v. Lee, 135 Miss. 865, 101 So. 345; Boyett v. Boyett, 152 Miss. 201, 119 So. 299.

OPINION

Cook, J.

Appellee, Mrs. Eva Russell, sued her husband, Grover C. Russell, for divorce and alimony and for the custody of their only child, an infant. On the hearing of that cause a decree was entered dissolving the bonds of matrimony and awarding the appellee the custody of the child, fifty dollars per month as permanent alimony, fifteen dollars per month for the support of the child, and an attorney's fee. From that decree an appeal was prosecuted, and on April 16, 1930, while that appeal was pending in this court, the appellee filed a motion for an allowance of attorney's fees in this court, and for alimony and support of the child pending the appeal. In the decision of that cause, which is reported in 157 Miss. 425, 128 So. 270, it was held that, while the evidence showed that the husband was not without fault, and that he had been guilty of rudeness and harsh treatment of such character as to render the wife unhappy and her marital bond irksome, it did not amount to such habitually cruel and inhuman treatment as would entitle the the wife to a divorce. It was held, however, that the appellee was entitled to a fee for her attorney and to alimony and an allowance for the support of the child pending the appeal to this court, and this alimony was fixed at sixty-five dollars per month while the appeal was pending, beginning with the date of the filing of the appeal bond, this amount to cover also the support of the child. Upon the filing of the mandate of this court in the court below, the said husband paid to appellee the full amount allowed for alimony and support of the child pending the appeal in this court.

In the meantime, and while the appeal was pending, the said child became very seriously and critically ill, and upon the advice of a physician was removed to a hospital for care and treatment. The child continued critically ill for some time and this illness resulted in the accumulation of bills for medicine, and for hospital, physician, and nurses' fees, amounting to four hundred thirty-three dollars and eighty-five cents. On the 17th day of April, 1930, the day after the motion was filed in this court for an allowance for alimony and support of the child pending that appeal, the child was removed from the hospital and the bills for the above amount, four hundred thirty-three dollars and eighty-five cents, were paid by the appellee. Thereafter she sued her husband in the county court of Lauderdale county seeking to recover from him the said sum of four hundred thirty-three dollars and eighty-five cents alleged to have been necessarily expended in saving the life of the child. Upon the proof the county court peremptorily instructed the jury to return a verdict for the appellee for the sum sued for, and on appeal to the circuit court the judgment of the county court was affirmed. From the judgment of affirmance in the circuit court the present appeal was prosecuted.

In the county court, as a defense to the suit, the appellant set up as notice under his plea of the general issue, in substance, that he was not liable for said sum, for the reason that the appellee, without just or reasonable cause, separated herself from him, and without his knowledge or consent took with her the said child; that the appellee had rejected his efforts to effect a reconciliation; that the expenses incurred in connection with the illness of the child were unnecessary; that the appellee was and is an able-bodied woman fully able to nurse and care for the child, and that this court had adjudicated that the appellant's conduct in the home was not such as to justify a separation or to entitle the appellee to the exclusive custody and control of said child. The appellant also filed a supplemental notice under the general issue, alleging, in substance, that the expenses sued for were incurred and paid by appellee while the former appeal was pending in this court and before the allowance for alimony and for support and maintenance of the child pending that appeal, and that, therefore, the said allowance was res adjudicata as to the amount due by the appellant for the support and maintenance of the child.

On motion the county court struck from the original notice under the general issue all reference to the original suit between the parties and to the alleged efforts of appellant to effect a reconciliation, and also...