203 N.W. 671 | Mich. | 1925
Edward Dzwonkiewicz, a minor, was seriously injured in an automobile accident by a vehicle owned by the Detroit Motorbus Company in October, 1923. He was taken to Harper hospital and attended professionally by Dr. McAlpine, the appellant herein. A surgical operation was performed and attendance given for a period of about five months. The father of the minor, who was a day laborer, had abandoned his family. The mother frequently met the doctor at the hospital, but the question of compensation was not discussed with her. An action was brought by the mother as next friend against the Motorbus Company and judgment recovered for $7,500, which was settled on payment of $6,500. This sum, less the fees of the attorney, was paid to the mother, who had been appointed guardian of the infant by the probate court. Soon thereafter, Dr. McAlpine filed a petition in the probate court, setting up the above facts and averring that the services rendered by him for the infant were of the value of $500 and that the guardian had sufficient funds in her hands to pay for such services. He asked for an order requiring payment by her. Proof was taken by the probate court. The charges were found to be reasonable, and an order was entered directing payment thereof by the guardian. This order she reviewed by certiorari in the circuit court. The trial court there held that the plaintiff (the doctor) had "mistaken his remedy;" that he should have proceeded by suit against the guardian, and set aside the order entered. This order the doctor here reviews by writ of error.
Section 13968, 3 Comp. Laws 1915, provides:
"Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, shall pay all just debts due from the ward," etc. *167
It appears from the record, as above stated, that the father had abandoned his family. The services performed by the doctor were without express contract for payment. We have no doubt that the infant is liable for the reasonable value thereof on an implied contract to pay therefor. Such services as were here rendered by the doctor were "necessaries" within the meaning of that term as applied to the liability of infants to pay therefor.
"The most usual things which are considered necessaries are those answering the bodily needs of the infant, without which the individual cannot reasonably exist, * * * such as * * * medicines and medical attendance furnished him when his health or physical condition require them." 31 C. J. p. 1079.
See, also, Harris v. Crawley,
The trial court did not hold otherwise. He was of the opinion that under the holding in Lothrop v. Duffield,
The right of the plaintiff to recover in this proceeding is dependent upon the implied contract of the ward to pay him for his services. He had no contract with the guardian. The proceeding to obtain allowance of the claim is akin to that of a creditor with a claim against the estate of a person deceased. It is the duty of a guardian under section 13968 to "pay all just debts due from the ward." In State v. Dunbar'sEstate,
The order reviewed will be set aside and that of the probate court affirmed. The plaintiff will have costs against the estate of the ward.
McDONALD, C.J., and CLARK, BIRD, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.