No. 40205. | Iowa | Apr 14, 1930
Appellant and his wife were divorced, and the wife was awarded the custody of the four minor children of said parties, aged 10, 9, 8, and 3 years. The wife has remarried, and judgment by default has been entered against *1137 her. By the decree of divorce the appellant was required to pay his wife alimony in the sum of $75 per month, which was afterward reduced to $50 per month, and on March 1, 1928, a final settlement was made between said parties, by which a lump sum of $1,300 was paid by the appellant to his wife, in full settlement of alimony. The wife has retained the custody of said children since said divorce, and they live with her in Council Bluffs, Iowa, the appellant living on a farm near Dunlap, Iowa.
The stipulated facts show that the appellee performed an emergency operation upon one of said minor children on the 23d day of December, 1928, and a like emergency operation upon another one of said children on the 12th day of January, 1929; that a certain hospital in Council Bluffs furnished medicine and hospital services and attention for certain of said minor children; and that the claim of said hospital has been duly assigned to appellee. The said services were all performed at the instance of said minors, respectively, and were necessaries so furnished to said minors, and the amount sought to be recovered is the fair and reasonable amount.
The sole question for our determination is whether or not, under the stipulated facts which we have substantially recited herein, the appellant is liable for the necessaries so furnished to his said minor children.
It is the rule in this state that, if the parent of a minor child neglects to provide the necessaries for said minor, the parent is liable to a stranger who furnishes the same, even though the child is not living with said parent, or within the parent's custody. Porter v. Powell,
Appellant places great reliance upon Town of Farmington v.Jones,
Appellant contends that the location of the parties was such that the appellant should have been notified of the necessity for the rendition of the services before they were rendered, and that he is absolved from liability because of such failure to notify him. The stipulation of facts, however, discloses that the services were necessary, and were rendered in an emergency. Therefore, under the stipulation, the failure to notify the appellant would, in any event, not bar recovery, because of the admitted emergency which required the rendition of the services.
Section 10459, Code, 1927, is as follows:
"The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately."
We have applied such statute in a case where a decree of separate maintenance had been entered, and where the children were living with one parent, and the other was held liable.Davies Dry Goods Co. v. Retherford, supra. We have applied the same rule in a case of a divorce. Debrot v. Marion County, supra.
The judgment of the district court was correct, under the stipulation of facts and the law applicable thereto, and it is —Affirmed.
*1139MORLING, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur.