Morfit v. Thompson , 219 Mo. App. 506 ( 1926 )

DISSENTING OPINION. I concur in the majority opinion in so far as it affirms the judgment against Walter D. Thompson. I think the judgment should be affirmed against both defendants, and therefore I dissent as to that portion of the opinion reversing the judgment against Mabel Green Thompson, and will briefly state my reasons therefor:

Plaintiff recovered judgment against both husband and wife, on the second count of the petition, for the operation and attendance on the elder daughter, Mabel. It was the wife, Mabel Green Thompson, who called Dr. Morfit, the plaintiff, for the purpose of having him make an examination of her daughter, Mabel. In compliance with her suggestion and request, he made this examination, and she, as well as her husband, agreed to the operation.

Even though it be conceded that the daughter was over eighteen, she was living at home with her parents, and the evidence does not disclose that she had any means of her own, nor is there anything from which it could be inferred that the parents expected her to pay this bill. In fact, it is not contended here that she is in any way liable, but the contention is that the father alone is liable. The leading case upon this proposition in Missouri is Morrell v. Lawrence, 203 Mo. 363, 101 S.W. 571. In that case a father called a doctor to treat his son. The son was forty-two years of age, and not living with his father, but at a hotel, and was a man of considerable means, conducting his own business. The son became ill, and the father sent a telegram to the doctor, telling him that the son was quite sick and that he would like to have him treat him. Upon the doctor's arrival at the father's house, he was taken to see the son who was sick, and he afterwards treated the son and took care of him in a professional way. The father sought to avoid liability, on the theory that he had made no contract to pay the doctor for his services, and that his son was more than twenty-one years of age. A number of cases were discussed by the court in that opinion.

A parent who calls a doctor to treat an adult child is not liable for the payment of the doctor's bill if there is nothing else in the case to indicate the intention on the part of the parent to pay. Judge VALLIANT, in discussing this rule in the Morrell case, l.c. 371, said:

"And we see no objection to applying the rule to the case of a father calling a physician to wait on his son if the son is of age and living to himself and if there is nothing in the conditions to indicate that the father is taking upon himself anything more than the office of messenger for his son. But there is something more than the dictates of common humanity between father and son and the fact of that relationship is to be considered in connection with other circumstances, if there are other circumstances, indicating to the physician that the father calls him on his own account to serve his son."

The mere fact, alone, that Mabel Green Thompson, the defendant, called the doctor to treat her adult daughter, would not perhaps be sufficient to make her liable for the payment of the doctor's bill. But every fact and circumstance in this case indicates clearly that the mother as well as the father should be held liable for the treatment of this elder daughter. The daughter was not living to herself, but was living with her parents. It was the mother, and not the father, who called the doctor to see her. The daughter was not in business for herself, nor had she any means, so far as this record discloses, of paying the doctor for his services. The relationship of the parties, the circumstances surrounding the transaction, all indicated to the physician that either the father or mother or both intended to become liable for the treatment of their daughter. At least it was a question of fact for the jury to determine whether or not an implied contract between the doctor and the mother could be inferred; and we should not say as a matter of law that the mother was acting as a mere messenger for her daughter.

For these reasons I think the judgment should be affirmed as to both defendants.