55 S.W.2d 400 | Ky. Ct. App. | 1932
Reversing. *580
This appeal presents for determination the sufficiency of the allegations and proof to sustain a recovery of money advanced as a portion of the fee of an attorney employed to defend an insane person charged with, and confined in jail, for the crime of willful murder.
Alvin L. McGavock, in 1925, killed Clarence Becker with a deadly weapon. He was arrested and charged with the crime of willful murder, and committed to jail in Jefferson county, Ky. At that time he was 44 years of age. After confinement in jail, he manifested symptoms of insanity. His father and mother resided in Jefferson county. His father engaged a distinguished lawyer to defend him on the charge of murder, and thereafter set about to raise $3,000 with which to pay his fee. O.W. McGavock, an uncle of Alvin, resided in Breckinridge county, Ky. The father of Alvin went to his home and induced him to furnish $1,000 toward paying the attorney's fee, by assuring him that, "if Alvin ever got to himself and got out, he would pay it back, and if he did not do that, when the property of his was sold, he would get his $1,000.00." The evidence sufficiently shows that O.W. McGavock furnished the $1,000.00 with intent to charge Alvin therefor, and not as a mere gratuity, and that the credit was extended to Alvin by reason of the statement of his father, and not to the father. Coffee v. Owens' Adm'r,
The law implies a contract only to the extent that it is for necessaries, and his liability extends only to the actual value of the benefits received, even though the necessaries be furnished to him before an inquisition of lunacy and the party furnishing same is aware of his mental condition. Smith's Committee v. Forsythe, supra. This brings for consideration the question, Was the furnishing of the $1,000 by O.W. McGavock to pay his lawyer's fee, a necessary, within the meaning of that term as it is commonly understood in such cases? The text-writers and the courts class legal services rendered an insane person who is charged with the commission of a crime, with food, clothing, medical services, and doctor's bills as necessaries. Fitzpatrick's Committee v. Dundon, supra; Jones v. Meyer (Tex.Civ.App.)
It is argued that the right of recovery herein of O.W. McGavock is controlled by Ward's Committee v. Kimbel,
It is argued that Alvin McGavock was not tried on the charge of willful murder, but tried and convicted of lunacy. Conceding this, the services for which the $1,000 was advanced by O.W. McGavock were essential to the protection of the life and liberty of Alvin McGavock, and his trial and conviction for lunacy terminated the prosecution against him for willful murder. This was "a necessary" within the meaning of this term as it is defined by the common law. This was the purpose for which the $1,000 was advanced by O.W. McGavock. But this case must be reversed for causes we will now consider: First, the plaintiff pitched his cause of action on the contract made by the father as the representative of an insane person, Alvin McGavock; second, Alvin McGavock was an insane person at the time it is claimed by the plaintiff he furnished the $1,000 for his use and benefit. His right of action is one created by the operation of law, by virtue of his furnishing the $1,000, in the circumstances, a necessary, within the meaning of this term as it is defined by the law, and was an actual benefit to him. The plaintiff in his petition and in his evidence, and the court in his instructions to the jury, predicated the plaintiff's right to recover on the existence and terms of a contract alleged to have been made by the father of Alvin McGavock with the plaintiff. In view of the principles we have hereinbefore stated, even though it be conceded that the contract was made by the father of Alvin McGavock with the plaintiff, and that its terms and conditions were established by undisputed and uncontradicted evidence, no cause of action thereby accrued or existed as against Alvin McGavock. The evidence showing the making of the contract by the father was competent for the purpose of establishing that the furnishing of the $1,000 was not gratuitously or voluntarily done by the plaintiff for the benefit of Alvin McGavock. While it is fairly and sufficiently shown that he did not gratuitously or voluntarily furnish the $1,000, and it was a necessary within the meaning of this term and actually for the benefit of Alvin McGavock, yet the plaintiff is not entitled to recover on the allegations of his petition and evidence showing the making of the contract by the father as representative or agent of Alvin McGavock, since it is a well-established rule that a recovery upon proof of an implied contract cannot be had when only an express *584
contract is declared on. Smith v. Robinson,
Wherefore the judgment is reversed and cause remanded for proceedings consistent with this opinion.
Whole court sitting.